Robert W. Mills, Esq. (#062154)
Gilmur R. Murray, Esq. (#111856)
Derek G. Howard, Esq. (#118082)
Alex J. Luchenitser, Esq. (#177367) (appearing pro hac vice)
THE MILLS LAW FIRM
300 Drake's Landing, Suite 155
Greenbrae, California 94904
Telephone: (415) 464-4770

Attorneys for Plaintiff Dwight E. Wininger
On Behalf of Himself and All Others Similarly Situated

I. INTRODUCTION

II. PLAINTIFF WININGER IS ENTITLED TO BE APPOINTED LEAD PLAINTIFF

A. Defendants Have No Standing to Challenge Wininger's Entitlement to the Presumption That He is the Most Adequate Plaintiff Under PSLRA

B. Wininger is Clearly Entitled to the Presumption That He is the Most Adequate Plaintiff Under PSLRA

C. There is No Good Cause To Take Plaintiff's Deposition at this Time

D. The Motion Before the Court is Not a Motion for Class Certification

III. THE PRESS RELEASE FULLY COMPLIES WITH THE REQUIREMENTS OF PSLRA

A. The Press Release Contains All the Information Required to be Given by PSLRA

B. The Defendants Seek to Compel the Plaintiff to Fill Up the Press Release With Information Not Required to Be Given by PSLRA

1. PSLRA Does Not Require the Press Release to Give the Name of the Plaintiff or Details About Him

2. The Press Release Clearly Describes the Defendants

3. The Press Release Clearly Describes the Claims Asserted in the Lawsuit

4. The Press Release Discloses What the Composition of the Class is and Who Can Move to Serve as Lead Plaintiff

5. The Press Release Clearly Informs the Limited Partners that Any of Them May Move to Serve as Lead Plaintiff

C. The Press Release Fully Fulfills the Purpose of PSLRA's Notice Requirement

IV. DEFENDANTS' IMPLICIT SUGGESTION THAT THE COURT EXTEND THE TIME FOR APPOINTMENT OF THE LEAD PLAINTIFF SHOULD BE REJECTED

V. CONCLUSION

Cases

Finkel v. Docutel/Olivetti Corp., 817 F.2d 356 (5th Cir. 1987)

Fischler v. AMSouth Bancorporation, 1997 WL 118429 (M.D. Fla. Feb. 6, 1997)

Greebel v. FTP Software, Inc., 939 F. Supp. 57 (D. Mass. 1996)

Howard Gunty Profit Sharing v. Quantum Corp., Civil No. 96-20711 SW (N.D. Cal. Feb. 6, 1997)

In re Delmarva Securities Litigation, 794 F. Supp. 1293 (D. Del. 1992)

In re Ramada Inns Securities Litigation, 550 F. Supp. 1127 (D. Del. 1982)

McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309 (D. Conn. 1995)

Ravens v. Iftikar, C-96-1224-VRW (N.D. Cal. Jan. 7, 1997)

San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801 (2d Cir. 1996)

Wilkes v. Heritage Bancorp, Inc., 767 F. Supp. 1166 (D. Mass. 1991)

Statutes and Rules

15 U.S.C. § 78u-4

Fed. R. Civ. P. 23

Plaintiff Wininger is the only limited partner in Synthetic Industries, L.P. ("the Partnership") who has moved to serve as lead plaintiff. Counsel for plaintiff Wininger also represents 412 (22 percent) of the approximately 1850 limited partners in the Partnership. Luchenitser Reply Decl. ¶¶ 1-3. As no other limited partner has opposed plaintiff Wininger's motion to serve as lead plaintiff, and since Wininger's counsel has broad support among the putative class of limited partners, plaintiff Wininger's appointment as lead plaintiff should be a routine matter.

The most fundamental problem with the defendants' opposition is that they have no standing to raise any of their arguments, other than those about the press release. Much like the fox claiming to look out for the interests of the chickens in the coop, the defendants are complaining that plaintiff Wininger may not be up to snuff. On this false premise, defendants seek to conduct discovery as to whether Wininger satisfies the requirements of Fed. R. Civ. P. 23. In the context of a motion to appoint a lead plaintiff under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), however, the defendants' request for discovery is misplaced. This is an argument for other potential lead plaintiffs, not a defendant, to make. In any event, plaintiff Wininger easily satisfies the requirements of Rule 23.

With respect to the press release, defendants have raised a number of specious, meritless objections. The press release issued by the plaintiff contains all the information required to be given by PSLRA. And while defendants contend that numerous additional items of information should have been included in the press release, the inclusion of those items is not required by law and would have only served to make the press release cluttered, confusing, and unduly long.

PSLRA provides that

the court shall adopt a presumption that the most adequate plaintiff . . . is the person . . . that

(aa) has either filed the complaint or made a motion in response to a notice under subparagraph (A)(i);

(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)(I).

Defendants have no standing to challenge Wininger's entitlement to the presumption that he is the "most adequate plaintiff" under PSLRA. In Greebel v. FTP Software, Inc., 939 F. Supp. 57, 63 (D. Mass. 1996), the court ruled that "the [PSLRA] provisions in [15 U.S.C. § 78u-4](a)(3)(B) relate to who will stand as the lead plaintiff" and that "[t]he text of that subsection clearly indicates that this issue is one over which only potential plaintiffs may be heard." (Emphasis added.)¹ PSLRA states,

The presumption described in [15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)] may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff--

(aa) will not fairly and adequately protect the interests of the class; or

(bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class.

15 U.S.C. § 78u-4(a)(3)(B)(iii)(II) (emphasis added). "The plain language of [PSLRA] dictates only members of the plaintiff class may offer evidence to rebut the presumption in favor of the most adequate plaintiff." Fischler v. AMSouth Bancorporation, 1997 WL 118429 at *2 (M.D. Fla. Feb. 6, 1997). Defendants' motion raises much sound and fury, but the simple fact is that if defendants have a challenge to Wininger's fitness, the appropriate procedure is to raise their objections when Wininger files his motion for class certification.

Even if defendants did have standing to challenge plaintiff Wininger's entitlement to PSLRA's presumption of adequacy -- which they do not -- their arguments still go nowhere. Defendants do not even dispute that plaintiff Wininger satisfies the requirements of 15 U.S.C. §§ 78u-4(a)(3)(B)(iii)(I)(aa) and (bb). Plaintiff Wininger filed the complaint. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa). And plaintiff Wininger "has the largest financial interest in the relief sought by the class" -- no one else has even moved to serve as lead plaintiff. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb). Moreover, counsel for plaintiff Wininger also represents 412 (22 percent) of the approximately 1850 limited partners in the Partnership. Luchenitser Reply Decl. ¶¶ 1-3.

Defendants dispute whether plaintiff Wininger satisfies the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(cc); Defendants' Opposition at 5-6. Rule 23(a) provides,

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (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.

In Fischler, 1997 WL 118429 at *2, the court stated that, in determining who should be appointed lead plaintiff, "[a] wide-ranging analysis under PSLRA is not appropriate and should be left for consideration of a motion for class certification." The Fischler court added that the "inquiry, therefore, focuses on the qualities of the class representatives enumerated in 23(a)(3) and 23(a)(4), that is, typicality and adequacy." Id.; see also Howard Gunty Profit Sharing v. Quantum Corp., Civil No. 96-20711 SW, Exh. B to Defendants' Opposition at 9 (N.D. Cal. Feb. 6, 1997) (for purposes of PSLRA's lead plaintiff provision, "a plaintiff must only make a minimal showing of numerosity, commonality, typicality and adequacy of representation").

Plaintiff Wininger easily satisfies all four requirements of Rule 23(a). There is no room to dispute that "the class is so numerous that joinder of all members is impracticable." See Rule 23(a)(1). The class consists of approximately 1850 limited partners. Luchenitser Reply Decl. ¶ 2 & Exh. H.

The claims raised by plaintiff Wininger concern "questions of law or fact common to the class." See Rule 23(a)(2). Defendants' unlawful March 21 proxy solicitation was sent to all the limited partners. The issue of whether equitable relief should be issued to remedy the defendants' violations of federal securities laws affects all the limited partners.

The claims of plaintiff Wininger are typical of the claims of the class. See Rule 23(a)(3). All the limited partners have an interest in assuring that the defendants comply with the federal securities laws. The illegal March 21 solicitation and June 9 press release were targeted at all the limited partners.

Finally, there is no reason to doubt that plaintiff Wininger "will fairly and adequately protect the interests of the class." See Rule 23(a)(4). As this court has seen, plaintiff Wininger and his counsel have aggressively protected the interests of the putative class. Indeed, if plaintiff Wininger had not pursued this lawsuit so vigorously, defendants would not have opposed his motion to be appointed lead plaintiff.

Defendants seek to take plaintiff Wininger's deposition and conduct other unspecified discovery related to plaintiff Wininger's ability to adequately represent the class. Defendants' Opposition at 6-7. However, the case which defendants rely on in the section of their brief that requests discovery, Howard Gunty, Civil No. 96-20711 SW, specifically states that "defendants may not offer evidence or conduct discovery relating to who is the most adequate plaintiff." Defendants' Opposition, Exh. B at 7.

The reason for the court's conclusion in Howard Gunty is that the only provision in PSLRA which provides for permitting discovery relating to who should be appointed lead plaintiff states, "discovery relating to whether a member or members of the purported plaintiff class is the most adequate plaintiff may be conducted by a plaintiff only if the plaintiff first demonstrates a reasonable basis for a finding that the presumptively most adequate plaintiff is incapable of adequately representing the class." 15 U.S.C. § 78u-4(a)(3)(B)(iv) (emphasis added). Therefore, as held in Greebel, 939 F. Supp. at 60, under PSLRA "the right to conduct discovery is explicitly restricted to purported class members."

Moreover, as explained above, the defendants do not have standing to challenge plaintiff Wininger's right to serve as lead plaintiff at all. Id.; Fischler 1997 WL 118429 at *2. And even if discovery by defendants was permissible under PSLRA, the defendants in this case would still not be entitled to conduct discovery because they have not "demonstrate[d] a reasonable basis for a finding that the presumptively most adequate plaintiff [Wininger] is incapable of adequately representing the class." See 15 U.S.C. § 78u-4(a)(3)(B)(iv).

While it may be proper to consider defendants' Rule 23 arguments and discovery request in the context of a motion for class certification, defendants' contentions are premature at this time. Howard Gunty, Civil No. 96-20711 SW, explains that "the determination [of lead plaintiff] pursuant to [PSLRA] is a threshold determination that is subject to reevaluation at the class certification stage." Defendants' Opposition, Exh. B at 9. See also Greebel, 939 F. Supp. at 60 (stating that "Congress recognized that" a motion for class certification and a motion to be appointed lead plaintiff under PSLRA "involved distinct inquiries" and "understood, therefore, that lead plaintiff motions would be decided prior to consideration of the certification issue").

Since no motion for class certification has yet been made, defendants' Rule 23 arguments and discovery request are not appropriate now. Defendants will suffer no prejudice if they take discovery during the class certification process. In essence, defendants opposed plaintiff's motion not to protect the class, but to protect themselves by delaying plaintiff Wininger's appointment as lead plaintiff.

The defendants contend that the press release issued by the plaintiff is defective. Defendants' Opposition at 2-5. PSLRA required the press release to advise class members

(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 class may move the court to serve as lead plaintiff of the purported class.

15 U.S.C. § 78u-4(a)(3)(A)(i).

The press release contains all the information required to be given by PSLRA. It advises the class of "the pendency of the action" through the statement, "A class action lawsuit has been commenced, in the U.S. District Court for the Northern District of California (Case No. C-97-06122 CW) on behalf of the limited partners in Synthetic Industries, L.P." Luchenitser Decl., Exh. A. The press release advises the class of "the claims asserted" in the lawsuit by stating,

The complaint alleges that the defendants violated federal securities regulations by sending a proxy solicitation to the limited partners without filing it with the Securities and Exchange Commission, by mailing out the solicitation without filing or disseminating a proxy statement, and by failing to disclose numerous material facts in the solicitation.

Luchenitser Decl., Exh. A.

As explained in more detail below, the concept of "class period," which is used to define the membership of a class in securities class actions which allege damages, is not applicable to this lawsuit because the lawsuit only seeks injunctive relief. The press release also expressly conveys the fact that the members of the class are persons who currently hold limited partnership units in the Partnership. The press release states that the class action lawsuit has been filed "on behalf of the limited partners in Synthetic Industries, L.P." Luchenitser Decl., Exh. A.

Finally, the press release fully advises the class members of their right to make a motion to serve as lead plaintiff. The press release states, "If you own limited partnership units in Synthetic Industries, L.P., you may, no later than 60 days from today, make a motion with the court to serve as lead plaintiff of the class, if you so choose." Luchenitser Decl., Exh. A.

While the press release gives all the information required by PSLRA, the defendants complain that the press release does not give numerous other items of information and details not required to be given by PSLRA. But if the press release had contained all the information which defendants claim should have been included, the press release would have been far less effective in fulfilling the purpose of PSLRA's press release requirement -- to encourage class members who have a large financial stake in the litigation to seek the responsibilities of being lead plaintiff. See Conference Report, H. Rept. No. 104-369, ¶ 302 (Nov. 28, 1995).

The defendants' version of the press release would have been so cluttered with unnecessary and technical details that class members would have been far less likely to read it, much less understand it. Moreover, PSLRA requires the press release to be published in only one "widely circulated national business-oriented publication or wire service." 15 U.S.C. § 78u-4(a)(3)(A)(i). The defendants' version of the press release would have been several times longer than the press release issued by the plaintiff and would have been much less likely than the plaintiff's press release to be carried by news outlets other than the one in which it was originally published.

The five specific allegations leveled by defendants against the press release are without merit. The defendants' first objection is that the press release does not identify the name of the plaintiff who filed the action or give details about him. Defendants' Opposition at 3. However, PSLRA does not require the name of the plaintiff or any other information about him to be stated in the press release. Congress specifically enumerated the items that should be stated in the press release, and the name of the plaintiff or additional information about him was not one of them. Moreover, the name of the plaintiff, unfamiliar to many class members, would not convey any useful information to them.

The defendants complain that the press release does not give their names or state how many of them there are. Defendants' Opposition at 3. Again, PSLRA does not require the names or the number of the defendants to be given in the press release. In addition, the press release clearly describes the defendants -- it states, "The defendants in the lawsuit are the partnership's general partner and the individuals and entities which control the general partner." Luchenitser Decl., Exh. A.

The defendants claim that the press release fails to adequately advise the members of the class about the nature and character of the claims asserted. Defendants' Opposition at 3-4. This contention is unfounded. The press release complies with PSLRA's requirement that it describe "the claims asserted" in the lawsuit. See 15 U.S.C. § 78u-4(a)(3)(A)(i)(I). As set forth above, the press release states:

The complaint alleges that the defendants violated federal securities regulations by sending a proxy solicitation to the limited partners without filing it with the Securities and Exchange Commission, by mailing out the solicitation without filing or disseminating a proxy statement, and by failing to disclose numerous material facts in the solicitation.

Luchenitser Decl., Exh. A.

The defendants' apparent objection to this comprehensive yet concise description of the claims in the lawsuit is that it does not provide details such as the specific material facts which were not disclosed in defendants' March 21 proxy solicitation. However, the March 21 solicitation failed to disclose so many material facts that it would have been impractical to list them all in the press release. Surely, Congress did not intend the press release required under PSLRA to be nearly as long as the complaint itself.

Ravens v. Iftikar, C-96-1224-VRW, Exh. A to Defendants' Opposition (N.D. Cal. Jan. 7, 1997), which defendants rely on, is inapposite. Other than identifying the statutes allegedly violated, the press release in Ravens gave no information about the claims asserted.² By contrast, the press release in this case describes the factual and legal grounds for the claims in the lawsuit in plain language.

Defendants' fourth objection is that the press release fails to notify the class of the "class period." Defendants' Opposition at 4. The term "class period" is normally used in class actions which seek damages on the basis that fraudulent representations artificially inflated the price of a security. In such cases, the "class period" denotes the time period during which the fraudulent representations inflated the stock's price. The term "class period" thus defines the class as those persons who bought stock during the "class period." See San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 805, 814 (2d Cir. 1996); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 363 n.20 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988); In re Delmarva Securities Litigation, 794 F. Supp. 1293, 1301 (D. Del. 1992); Wilkes v. Heritage Bancorp, Inc., 767 F. Supp. 1166, 1168, 1172 (D. Mass. 1991); In re Ramada Inns Securities Litigation, 550 F. Supp. 1127, 1129 (D. Del. 1982); McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309, 311 (D. Conn. 1995).

The case at bar seeks only injunctive relief, not damages. The class is therefore composed of those persons who currently hold limited partnership units in the Partnership. Only those persons have standing to seek the prospective relief desired in this case. Thus, while the case is pending, the composition of the class can change, if partnership units are transferred from one person to another. As a result, the concept of "class period" is not properly applicable to this case.

The plaintiff's press release, however, gives the information normally conveyed by the term "class period" -- what the composition of the class is and who can move to serve as lead plaintiff by virtue of being part of the class. The press release states that "[a] class action lawsuit has been commenced . . . on behalf of the limited partners in Synthetic Industries, L.P." Luchenitser Decl., Exh. A. The press release also states, "If you own limited partnership units in Synthetic Industries, L.P., you may, no later than 60 days from today, make a motion with the court to serve as lead plaintiff, if you so choose." Luchenitser Decl., Exh. A (emphasis added). In addition, the press release explains that "[t]he complaint seeks an injunction" and that "[t]he complaint does not seek damages." Luchenitser Decl., Exh. A.

The press release thus discloses that the class is composed of persons who are limited partners in the Partnership now and that any of those persons may move to serve as lead plaintiff. The press release conveys this information in language that can be easily understood. An attempt to use the term "class period" to describe the composition of the class would have been confusing or misleading to the class members because of the inapplicability of the concept of "class period," as it is normally used, to this case.³

Defendants' final objection to the press release is that it somehow discourages class members from seeking to serve as lead plaintiffs. Defendants' Opposition at 4-5. Like defendants' other objections, this one lacks merit. The press release fully complies with the requirements of PSLRA by informing the class members, "If you own limited partnership units in Synthetic Industries, L.P., you may, no later than 60 days from today, make a motion with the court to serve as lead plaintiff of the class, if you so choose." Luchenitser Decl., Exh. A.

Defendants complain about the sentence in the press release which states, "In order to serve as lead plaintiff of the class, you must meet certain requirements." Luchenitser Decl., Exh. A. But this is a true and informative statement, because PSLRA does require a number of conditions to be met in order for a person to serve as lead plaintiff. See 15 U.S.C. §§ 78u-4(a)(2)(A), 78u-4(a)(3)(B)(iii)(I).

Quoting the press release out of context, the defendants contend that the press release implies that persons who move to be appointed lead plaintiff would jointly serve as a lead plaintiff along with plaintiff Wininger. In fact, the press release first states, "If you own limited partnership units in Synthetic Industries, L.P., you may . . . make a motion with the court to serve as lead plaintiff of the class. . . ." Luchenitser Decl., Exh. A. Later in the same paragraph, the press release states, "If you wish to discuss this action . . ., or are interested in jointly serving as a lead plaintiff together with the current plaintiff, please contact plaintiff's counsel . . . ." Luchenitser Decl., Exh. A. A review of the last paragraph of the press release as a whole makes clear that the press release informs class members that they may either make their own motion to serve as lead plaintiff or seek to jointly serve as a lead plaintiff together with plaintiff Wininger.

The defendants also complain that the press release directs inquiries about the lawsuit to plaintiff's counsel. However, class members may wish to obtain more information about the lawsuit, and there is no one other than plaintiff's counsel to whom it would be appropriate to direct inquires.

As stated in Greebel, 939 F. Supp. at 63, the purpose of PSLRA's press release requirement "was not to ensure notice to the entire class, but merely to those sophisticated and institutional investors that Congress deemed presumptively most adequate to serve as lead plaintiffs in securities class actions." These sophisticated and institutional investors are likely to know of PSLRA's procedures and requirements and are unlikely to be affected by the allegedly "discourag[ing]" statements complained of by the defendants. The press release gives institutional and sophisticated investors all the information they need to decide whether to at least procure further information about the complaint, which can be obtained from plaintiff's counsel, the court, or the designated internet site on which securities class action complaints are required to be posted under Civil Local Rule 23-3.

PSLRA provides,

Not later than 90 days after the date on which [the press release required by PSLRA] is published, the 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.

15 U.S.C. § 78u-4(a)(3)(B)(i) (emphasis added). 90 days from the date of the May 21, 1997 press release is August 18, 1997. Defendants state that they "do not object to the Court's extending the deadline upon which it must rule on Wininger's motion to appoint himself lead plaintiff." Defendants' Opposition at 7 n.4.

However, PSLRA provides for extension of the 90-day period in only one instance -- where a motion to consolidate multiple class actions asserting substantially the same claims has been made. 15 U.S.C. § 78u-4(a)(3)(B)(ii). Since no motion to consolidate has been made here, defendants' implicit suggestion that the 90-day period be extended should be denied.

As Greebel, 939 F. Supp. at 60, states, "Congress intended that the lead plaintiff be determined at an early stage of the litigation." This court should resist defendants' efforts to defeat Congress' intent by delaying the appointment of the lead plaintiff. For the foregoing reasons, plaintiff Wininger respectfully requests that he be appointed lead plaintiff and that The Mills Law Firm be appointed class counsel.

¹ Greebel, 939 F. Supp. at 60, holds that defendants have standing only to raise the issue of whether a person seeking to become lead plaintiff complied with the certification and press release requirements of PSLRA. See 15 U.S.C. §§ 78u-4(a)(2)(A), 78u-4(a)(3)(A)(i). Defendants do not dispute the fact that Wininger has complied with the certification requirement.

² The press release in Ravens stated, in its entirety:

TO: All purchaser [sic] of SyQuest Technology, Inc. common stock during the period October 21, 194 [sic] to February 1, 1996

On April 2, 1996, a class action, Ravens, et al. v. Iftikar, et al., C-96-1224-VRW, was filed in the U.S. District Court for the Northern District of California, which asserts claims for violations of §§ 10(b) and 20(a) of the Securities Exchange Act of 1934. Any member of the proposed class may move the Court to serve as lead plaintiff no later than 60 days from the date of this Notice. For more information contact William S. Lerach, Milberg Weiss Bershad Hynes & Lerach LLP, 619/231-1058.

Defendants' Opposition, Exh. A at 9.

³ The plaintiff's complaint states, "For purposes of 15 U.S.C. Section 78u-4(a)(2)(A)(iv), the class period is March 21, 1997, through the present, and into the future, until the conclusion of this litigation." Complaint ¶ 23 (emphasis added). This statement was originally placed in the complaint because PSLRA, at 15 U.S.C. § 78u-4(a)(2)(A)(iv), requires any plaintiff who files a securities class action complaint to provide a sworn certification which "sets forth all of the transactions of the plaintiff in the security that is the subject of the complaint during the class period specified in the complaint." (Emphasis added.) This provision is one of many provisions in PSLRA designed to prevent "professional plaintiffs" who buy securities solely in order to serve as representative plaintiffs in class actions from filing securities class actions. See Conference Report, H. Rept. No. 104-369, ¶ 302 (Nov. 28, 1995). Plaintiff believed that, in order to comply with the intent of this PSLRA provision, it was proper to set forth all of his transactions in partnership units which occurred on or after March 21, 1997, the date of the letter which led to this lawsuit. See Luchenitser Decl., Exh. E, ¶ 4. Thus, for purposes of 15 U.S.C. § 78u-4(a)(2)(A)(iv) only, the complaint described the "class period" as starting on March 21.

As explained above, however, for purposes of 15 U.S.C. § 78u-4(a)(3)(A)(i)(I), the PSLRA provision which sets forth the required contents of the press release, the term "class period" is not properly applicable in this case. Stating in the press release that "the class period is March 21, 1997, through the present, and into the future, until the conclusion of this litigation" would not only have been confusing to the members of the class, but may also have been affirmatively misleading. It would have misled any persons who owned units in the Partnership on or after March 21, 1997, but do not own any units now, that they are members of the class and are eligible to serve as lead plaintiff. Because only injunctive relief is being sought, persons who no longer own units in the Partnership do not have standing to be plaintiffs in the lawsuit. For these reasons, instead of confusing and possibly misleading the class members by attempting to use the term "class period" where it did not fit, the press release disclosed that the class is composed of persons who currently own units in the Partnership, as stated in paragraph 17 of the plaintiff's complaint.