W.D.N.Y. Holds Structural Ironworkers Fund Satisfied Requirements of Rule 23 in PSLRA Securities Fraud Class Action

Per In re Bausch & Lomb Incorporated Securities Litigation, --- F.R.D. ----, 2007 WL 2027385 (W.D.N.Y., July 13, 2007) (NO. 06-CV-6294T):

This Court now turns to the question of whether the Structural Ironworks Fund otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. Rule 23 sets forth four prerequisites that a party must satisfy to serve as a class representative: numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a). Only two of these factors-typicality and adequacy-are relevant to a motion for appointment as lead plaintiff. See Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. 248, 252 (S.D.N.Y.2003) ("The moving plaintiff must make only a preliminary showing that the adequacy and typicality requirements under Rule 23 have been met") (citing In re Crayfish Co. Sec. Litig., 2002 WL 1268013, *4 (S.D.N.Y.2002); Weltz v. Lee, 199 F.R.D. 129, 133 (S.D.N.Y.2001)); In re Olsten Corp. Sec. Litig., 3 F.Supp.2d at 296. Indeed, "a 'wide ranging analysis under Rule 23 is not appropriate' at this initial stage of the litigation 'and should be left for consideration of a motion for class certification .' " Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. at 252 (quoting In re Party City Sec. Litig., 189 F.R.D. 91, 106 (D.N.J.1999)).

The typicality requirement is satisfied if claims "arise[ ] from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992), cert. dismissed, 506 U.S. 1088, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993). The claims of the representative party need not, however, be identical to those of all class members in order to be considered typical. See Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. at 253; In re Crayfish Co. Sec. Litig., 2002 WL 1268013 at *5. The adequacy requirement demands that the representative party "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). To determine adequacy, the court must consider whether class counsel is "qualified, experienced and generally able to conduct the litigation" and whether the proposed lead plaintiff has interests that are antagonistic to those of other class members. In re Drexel Burnham Lambert, 960 F.2d at 291 (internal quotation omitted); Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2d Cir.1968); Dietrich v. Bauer, 192 F.R.D. 119, 126 (S.D.N.Y.2000).

Here, the Structural Ironworkers Fund, like each of the other plaintiffs and potential class members in this litigation, seeks to hold Bausch & Lomb liable for the consequences of its alleged violations of the federal securities laws. The course of events giving rise to the Structural Ironworkers Fund's claims is the same course of events giving rise to the claims of other class members. Examination of the four complaints that thus far comprise this consolidated action, as well as the two motions for appointment of lead counsel that have been withdrawn, reveal the reliance by all named plaintiffs and class members, including the Structural Ironworkers Fund, on similar legal theories in support of their securities claims against Bausch & Lomb. Finally, all allege economic injury from the same purported wrongdoing.

Moreover, the Structural Ironworkers Fund, a large public pension fund with 3,600 members and $505 million in assets (Docket # 49-2 at ¶ 3), is a sophisticated institutional investor and appears well-suited to serve as a lead plaintiff in a securities class action. See In re Veeco Instruments, Inc., 233 F.R.D. 330, 332-33 (S.D.N.Y.2005) ("[T]he PSLRA was passed, at least in part, to increase the likelihood that institutional investors would serve as lead plaintiffs in actions such as this one"); Bassin v. deCODE Genetics, Inc., 230 F.R.D. 313, 315-16 (S.D.N.Y.2005) (noting that purpose of PLRA is to attract institutional investors). Finally, as discussed below, I find that the Structural Ironworkers Fund is represented by competent, experienced counsel which appears more than able to prosecute this litigation. For these reasons, I conclude that the Structural Ironworkers Fund has satisfied the requirements of Federal Rule 23.