Opinion
Civil Action No. 00-12398-REK.
February 22, 2001.
Stephen Moulton, Nancy F. Gans, Moulton Gans, LLP, for Plaintiff.
John H. Henn, Peter M. Casey, Christian M. Hoffman, Foley, Hoag Eliot, for Defendants.
Memorandum and Order
I.
Pending for decision are the following motions:
(1) Proposed PRI Lead Plaintiffs' [the Nomanbhoy Group's] Motion for Consolidation (Docket No. 14 in Civil Action No. 00-12398-REK, filed January 19, 2001);
(2) The Nomanbhoy Group's Motion for Appointment As Lead Plaintiffs and For Approval of Their Selection of Lead and Liaison Counsel (Docket No. 11 in Civil Action No. 00-12398-REK, filed January 19, 2001) with Memorandum of Law in Support (Docket No. 15, filed January 19, 2001) and Declaration of Samuel H. Rudman (Docket No. 16, filed January 19, 2001);
(3) Memorandum of PRI Automation, Inc. in Opposition to the Nomanbhoy Group's Motion for Appointment As Lead Plaintiffs and For Approval of Their Selection of Lead and Liaison Counsel (Docket No. 18, filed February 2, 2001);
(4) Reply by Kai Chan to Response Memorandum of PRI Automation, Inc. (item (3) above) (Docket No. 20, filed February 21, 2001).
The foregoing filings in this case, and related filings in other cases drawn to me under the practices of the Clerk of the United States District Court for the District of Massachusetts and the Local Rules of this court involve, among various other legal and factual issues not common to all these cases, an issue of constitutionality of at least one and perhaps more of the provisions of the Private Securities Litigation Reform Act, Pub.L. No. 104-67, 109 Stat. 737 (PSLRA).
One provision of this Act declares that a district court must, within 90 days after a selected date (which may be the date of filing of the civil action), designate a class representative for class action claims, who will have the responsibility for selecting and instructing an attorney or law firm to represent the class.
II.
Is the Private Securities Litigation Reform Act unconstitutional insofar as it purports to place on a district court the duty to select an appropriate class representative, who will then select an attorney or firm of attorneys to represent the class?
Would the act of a district judge in selecting a class representative capable of controlling the attorney or firm of attorneys to represent the class be an act of advocacy (potentially favoring some class members over others, or favoring plaintiffs over defendants or defendants over plaintiffs) that is in fundamental conflict with the role of the judiciary in the American legal system?
III.
Is assigning responsibility to a district court to instruct a nonlawyer to control the advocacy of a lawyer unconstitutional, on due process or other grounds, not only because these statutory provisions impose a nonjudicial duty on a court of the Third Branch but also because they are inconsistent with the role of an independent Bar?
Is a Bar that is independent in significant respects, even though its members are subject to some constraints incident to being officers of the court, a key characteristic of the American legal system?
IV.
Is the 90-day provision of the PSLRA an unconstitutional intrusion on the judicial functions of a United States district court in which this provision is invoked and might be invoked by any of the parties to a civil action before the court?
V.
Should this court issue an interlocutory Declaratory Order declaring selected provisions of the Act unconstitutional on the foregoing grounds?
VI.
Before deciding how to answer the question stated in Part V, the court will invite the parties, and any interested member of the Bar of this Court as friend of the court, to make recommendations on how the court should answer the questions stated in Parts II-V of this Memorandum and how the court should proceed to move forward, to appropriate disposition, all of the cases before the court that involve the questions of law stated in Parts II, III, and IV above?
ORDER
(1) The dates in previous orders on the pleadings schedule in this and all related cases are hereby extended until further order of this court. The pleadings schedule will be reconsidered at the next Case Management Conference.
(2) The next Case Management Conference is scheduled for March 28, 2001, at 3:00 p.m., in Courtroom 3, for a hearing on the questions of law stated in Parts II, III, and IV above and the question of procedure stated in Part V. The filing of advance submissions is invited but not required.