Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dahhan v. Ovascience, Inc.

United States District Court, D. Massachusetts

July 16, 2018

FADI DAHHAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
OVASCIENCE, INC., et al, Defendants. WESTMORELAND COUNTY EMPLOYEE RETIREMENT SYSTEM, on Behalf of Themselves and All Others Similarly Situated, Plaintiff,
v.
OVASCIENCE, INC., et al, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Pending before the court are two actions brought against Defendants OvaScience, Inc. (“OvaScience”) and others. Lead plaintiff in the first action seeks to intervene in the second action, to strike notice regarding appointment of lead plaintiff in the second action, and to consolidate the two actions. For the reasons that follow, these motions are DENIED.

         I. Procedural History

         Fadi Dahhan filed a class action against OvaScience, Inc., and others in March 2017, asserting claims for violations of § 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), Rule 10b-5 promulgated thereunder, and § 20(a) of the Exchange Act, on behalf of purchasers of OvaScience common stock between January 8, 2015, and March 26, 2015. Compl., ECF No. 1, Dahhan v. OvaScience, Inc., et al., No. 17-cv-10511 (D. Mass. Mar. 24, 2017). In July 2017, Freedman Family Investments, LLC (“Freedman Family”) was appointed lead plaintiff because it asserted the largest financial interest in the relief sought by the class. Mem. & Order, ECF No. 16, Dahhan; Corrected Mem. & Order, ECF No. 42, Dahhan. In August 2017, Freedman Family filed an Amended Class Action Complaint. ECF No. 27, Dahhan. The Amended Class Action Complaint asserts the same Securities Exchange Act and Rule 10-b claims, now brought on behalf of purchasers of OvaScience publicly traded securities between December 17, 2014, and September 28, 2015. Id.

         In November 2017, Westmoreland County Employee Retirement System (“Westmoreland”) filed a separate class action against OvaScience, Inc., and others, alleging violations of §§ 11, 12(a)(2) and 15 of the Securities Act of 1933 (the “Securities Act”) on behalf of those who purchased OvaScience's common stock directly in OvaScience's January 8, 2015, Secondary Offering of securities. Compl., ECF No. 1, Westmoreland Cty. Emp. Ret. Sys. v. OvaScience, Inc., et al., No. 17-cv-12312 (D. Mass. Nov. 22, 2017). Lead counsel has not yet been appointed in Westmoreland.

         On January 17, 2018, Freedman Family filed a motion in Dahhan to consolidate the two actions. Mot. to Consolidate, ECF No. 37, Dahhan. Freedman Family also filed a motion in Westmoreland to intervene, to strike Westmoreland's notice to investors regarding appointment as lead counsel, and to consolidate the actions. Mot. to Intervene, Strike Notice, and Consolidate Actions (“Mot. to Intervene”), ECF No. 9, Westmoreland. Both motions were opposed by the Defendants and by Westmoreland.

         II. Intervention and Striking of Notice

         Freedman Family asserts that it may intervene in the Westmoreland action as a matter of right. Mot. to Intervene, ECF No. 9, Westmoreland. A party may intervene as of right under Federal Rule of Civil Procedure 24(a)(2) if that party meets four requirements:

First, the application must be timely. Second, the applicant must claim an interest relating to the property or transaction which is the subject of the action. Third, the applicant must be so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest. Fourth, the applicant must show that her interest will not be adequately represented by existing parties.

Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir. 1989). An applicant who fails to meet any one of these requirements cannot intervene as of right under Rule 24(a)(2). Id.[1]

         The Westmoreland action seeks to vindicate claims relating to the purchase of OvaScience's common stock in OvaScience's January 8, 2015, Secondary Offering of securities.

         Freedman Family does not allege that it purchased OvaScience's common stock during the Secondary Offering or that it has standing to bring the Securities Act claims asserted in the Westmoreland action. Indeed, while Freedman Family acknowledges that a motion to intervene must “‘be accompanied by a pleading that sets out the claim or defense for which intervention is sought, '” Mem. in Support of Mot. to Intervene 5 n.5, ECF No. 10, Westmoreland (quoting Fed.R.Civ.P. 24(c)), it proffers for such pleading “the Amended Complaint filed in Dahhan, ” id., which does not include the Securities Act claims.

         Freedman Family nonetheless asserts that because it was appointed as lead plaintiff in Dahhan, and because the public offering occurred within the class period claimed in the Dahhan complaint, it “is authorized to prosecute the claims” at issue in Westmoreland. Id. at 2; see also id. at 6 (“Freedman Family is the Court-appointed Lead Plaintiff with the authority to assert the claims purportedly . . . brought by Westmoreland in this case . . . .”). Freedman Family misses the mark. The authority it offers supports the notion that a lead plaintiff does not itself need to have standing to sue on every claim, but it does not undermine the requirements of Federal Rule of Civil Procedure 23 (as well as constitutional standing requirements) that there must at least be a named plaintiff with standing to sue on such claims before the lead plaintiff may assert them. See, e.g., Hevesi v. Citigroup Inc., 366 F.3d 70, 82-83 (2d Cir. 2004); see also Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 112 (2d Cir. 2013) (“[T]here must be a named plaintiff sufficient to establish jurisdiction over each claim advanced.”).[2] Here, the only plaintiff identified in the Dahhan Amended Complaint is Freedman Family, Am. Class Action Compl. ¶ 16, ECF No. 27, Dahhan, which purchased shares in March 2015, and not in the Secondary offering in January 2015, Kovacs Decl. Ex. C 4, ECF No. 13-3, Dahhan. Accordingly, there is no named plaintiff in Dahhan with standing to bring the claims raised in Westmoreland.

         Freedman Family argues finally that its interests and “the interests of the Class it was appointed to represent[] are . . . threatened by Westmoreland's . . . notice” of a new Lead Plaintiff deadline. Mem. in Support of Mot. to Intervene 7, ECF No. 10, Westmoreland. Although Freedman Family was appointed lead counsel, no class has yet been certified, [3] and Freedman Family's papers raise the question as to whether the broad class Freedman Family seeks to represent would be appropriate under Federal Rule of Civil Procedure 23, where Freedman Family's claims may not be typical of those investors who purchased securities in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.