Opinion
Case Number C 06-4128 JF.
January 22, 2007
Plaintiffs Saratoga Advantage Trust Large Capitalization Growth Portfolio and Saratoga Advantage Trust Technology Communications Portfolio (collectively "Saratoga Plaintiffs") move for appointment of themselves as lead plaintiff and for appointment of their counsel Finkelstein Krinsk LLP to the management committee. Nominal defendant Apple Computer Inc. takes no position on the motion. The management committee opposes the motion. The Court heard oral argument on the motion on January 19, 2007.
Plaintiff New York City Employees' Retirement System filed a response stating no opposition to the instant motion to the extent that it would not prejudice its application for lead plaintiff status in the related case Vogel v. Jobs, No. C 06-05208, brought under the Private Securities Litigation Reform Act. The Court granted that motion at oral argument on January 19, 2007.
On November 2, 2006, the Court issued an order establishing a management committee for this litigation and declining to appoint a lead plaintiff. Prior to issuing that order, the Court considered the arguments raised by the Saratoga Plaintiffs in the affidavit filed on October 19, 2006, and at the oral argument on October 20, 2006. While aware of the reputation and expertise of Finkelstein Kinsk LLP, the Court decided that the litigation would proceed most effectively with a management committee composed of Cotchett, Pitre, Simon McCarthy; Keller Rohrback L.L.P.; Lerach Coughlin Stoia Geller Rudman Robbins LLP; and Schiffrin Barroway, LLP, with the first firm serving as chair.
The Saratoga Plaintiffs now move for appointment of their counsel to the management committee to avoid a potential deadlock among the four-member committee and to protect claims under Section 10(b) of the Exchange Act, 15 U.S.C. § 78j, and Rule 10b-5, promulgated thereunder, 17 C.F.R. § 240.10b-5. The Court concludes that it should not alter the management structure for either of these reasons. The management committee reports that it has suffered no deadlocks in producing the Consolidated Shareholder Derivative Complaint, filed on December 18, 2006. The establishment of a four-member, rather than a five-member, management committee was not an oversight but rather was intended to promote consensus-building among the committee members. The Court remains confident that the management committee will prosecute the litigation efficiently and effectively. The Court also concludes that the management committee has adequate experience to protect any claims for relief under Section 10(b) or Rule 10b-5. Accordingly, the Court will deny the Saratoga Plaintiffs' motion for appointment of its counsel, Finkelstein Krinsk LLP to the management committee.
The Court also concludes that it need not appoint a lead plaintiff in this action. The Court recognizes the Saratoga Plaintiffs' vigorous interest in this litigation, but concludes that the management committee will represent the interests of Apple adequately without the appointment of a lead plaintiff. Accordingly, the Court will deny the motion to appoint the Saratoga Plaintiffs as lead plaintiff.
The Saratoga Plaintiffs argue that they should be included among the named plaintiffs in this action. The management committee stated at oral argument that it would give that suggestion serious consideration. The Saratoga Plaintiffs reserved the right to bring an appropriate motion on that subject. Accordingly, the Court need not address this issue at the present time.
IT IS SO ORDERED.