UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

X

MARCO PETERS, Individually and on Behalf of All Others Similarly Situated,

Plaintiff,

11 Civ. 7133 (JPO) JINKOSOLAR HOLDING CO., LTD., XIANDE LI, KANGPING CHEN, XIANHUA LI, WING KEONG SlEW, HAITAO JIN, ZIBIN LI, STEVEN MARKSCHEID, LONGGEN ZHANG, CREDIT SUISSE SECURITIES (USA) LLC, OPPENHEIMER & CO. INC., ROTH CAPITAL PARTNERS, LLC, and COLLINS STEWART LLC,

Defendants.

MEMORANDUM AND ORDER

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J. PAUL OETKEN, District Judge:

Presently before the Court are several competing motions for appointment as lead

plaintiff in a securities class action under Section 211)(a)(3)(B) of the Securities Exchange Act of

1934, 15 U.S.C. § 78u-4(a)(3)(B), as amended by the Private Securities Litigation Reform Act of

1995 ("PSLRA" or the "Act"). Specifically, before the Court are motions for appointment as

lead plaintiff by the JinkoSolar Investor Group (Dkt. No. 19); the Individual Investor Group

(Dkt. No. 22); Lin Wu (Dkt. No. 25); Abdullah al Mabmud, Azriel Shusterman, and Dr. Ronald

Snyder (the "Mahmud Group") (Dkt. No. 29); and W.J. Chiang (Dkt. No. 32). Each movant for

lead plaintiff status also moves for the appointment of its chosen counsel as lead counsel. In

addition, before the Court is an amended motion to be appointed lead plaintiff by the JKS Group

(Dkt. No. 41), a group consisting of members of the Individual Investor Group and the Mahmud

Group (specifically, Vaughn Leroy Meyer, Richard Matkevich, Abdullah Al Mahmud, and

Azriel Shusterman), which was filed upon the Court's request at a conference held January 12,

2012; and a Motion for Reconsideration of the Court's order of January 12, 2012, or for

Certification Under 28 U.S.C. § 1292(b), by Lin Wu (Dkt. No. 42).

For the reasons set forth below, the JKS Group's amended motion to be appointed as

lead plaintiff is granted, and Bernstein Liebhard LLP and Zamansky & Associates, LLC, are

appointed as co-lead counsel for the class. All other motions for appointment as lead plaintiff

are denied. Lin Wu's motion for reconsideration or for certification under 28 U.S.C. § 1292(b) is

also denied.

I. Background

This action was commenced on October 11, 2011 with the filing of a class action

complaint against JinkoSolar Holding Co., Ltd. ("JinkoSolar"); as well as several of its officers

and directors, including Xiande Li, Kangping Chen, Xianhua Li, Wing Koen Siew, Haitao Jin,

Zibin Li, Steven Markscheid, and Longgen Zhang; and several entities that served as

underwriters for certain offerings of securities by JinkoSolar, including Credit Suisse Securities

(USA) LLC, Oppenheimer & Co., Inc., Roth Capital Partners, LLC, and Collins Stewart LLC

(collectively, the "Defendants").

The complaint was brought by Marco Peters ("Plaintiff') on behalf of a putative class of

investors who purchased or otherwise acquired JinkoSolar New York Stock Exchange-traded

American Depository Shares ("ADS5") between May 13, 2010 and September 21, 2011 (the

"Class Period"), either in or traceable to a May 13, 2010 Initial Public Offering or otherwise on

the open market, and were damaged thereby. The complaint alleges that Defendants made

materially false and misleading statements concerning JinkoSolar's compliance with local

environmental regulations at its solar cell manufacturing plant in Hongxiao, Haining City in

Zhejiang Province, People's Republic of China, in violation of (i) Sections 11, 12(a)(2), and 15

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of the Securities Act of 1933 (the "Securities Act") and (ii) Sections 10(b) and 20(a) of the

Securities Exchange Act of 1934 (the "Exchange Act") and Securities Exchange Commission

("SEC") Rule lob-S promulgated thereunder.

On October 11, 2011, in accordance with the requirements of the PSLRA, 15 U.S.C. §

78u-4(a)(3)(A)(i), Plaintiff caused to be published a notice of the pendency of this action

through the Business Wire. (See Declaration of Jacob H. Zamansky in Support of the Motion to

Appoint Individual Investor Group, Ex. 1, Notice (Dkt. No. 24).) The notice set a deadline of

December 12, 2011 for motions for appointment as lead plaintiff. (Id.) On December 12, 2011,

the JinkoSolar Investor Group, the Individual Investor Group, Lin Wu, the Mahmud Group, and

W.J. Chiang each filed motions to be appointed lead plaintiff and for approval of their respective

choices for lead counsel. On December 23, 2011, the Court issued an Order setting a hearing on

these motions for January 11, 2012 (later adjourned to January 12, 2012) and ordering any

submissions in opposition to any motion for appointment as lead plaintiff to be filed no later than

January 5, 2012. (Dkt. No. 35.)

On January 3, 2012, W.J. Chiang withdrew his motion for appointment as lead plaintiff

(Dkt. No. 36), and on January 5, 2012, the JinkoSolar Investor Group filed a notice of non-

opposition to the competing lead plaintiff motions (Dkt. No. 37). On January 5, 2012, Lin Wu

filed a memorandum of law in opposition to the competing lead plaintiff motions. (Dkt. No. 40.)

Neither the Individual Investor Group nor the Mahmud Group filed papers in opposition.

However, on January 5, 2012 a new group, the JKS Group (the "Group"), comprising individual

members of the Individual Investor Group and the Mahmud Group, filed a memorandum of law

in support oftheirjoint motion to be appointed lead plaintiffs. (Dkt. No. 38.)

On January 10, 2012, Lin Wu submitted a letter to the Court challenging the JKS Group's

eligibility to be appointed lead plaintiff on the grounds that the Group's application was untimely

and, in any event, runs afoul of the policy behind the PSLRA to curb lawyer-driven litigation.

On January 11, 2012, the JKS Group submitted a letter in response.

On January 12, 2012, the Court held a conference and heard argument on the various

motions (the "January 12 Conference"). At the January 12 Conference, the Court expressed the

view that the JKS Group would be permitted to move for appointment as lead plaintiff but

requested that, as a "housekeeping" measure, the JKS Group file a formal motion to be appointed

as lead plaintiff so that, if the group was ultimately appointed lead plaintiff, there would be an

actual motion for the Court to grant. Lin Wu requested that, if the Court allowed the JKS Group

to file its motion, that the Court certify that decision for an interlocutory appeal pursuant to 28

U.S.C. § 1292(b) ("Section 1292(b)"). The Court stated that it would consider the request.

On January 18, 2012, Lin Wu filed a motion for reconsideration of the Court's order

granting the JKS Group permission to file its motion to be appointed lead plaintiff, or for

certification of that decision for interlocutory appeal under Section 1292(b).

II. Motion for Reconsideration

The JKS Group argues that Mr. Wu's motion for reconsideration is premature, because

the Court has not yet ruled on the competing motions for lead plaintiff. This is true, but as Mr.

Wu explains, he is actually moving for reconsideration of the Court's decision from the bench at

the January 12 Conference that the JKS Group would be permitted to file an amended motion to

be appointed lead plaintiff.

Mr. Wu's motion for reconsideration is not premature, but it is nevertheless denied.

Reconsideration is viewed as an "extraordinary remedy to be employed sparingly in the interests

of finality and conservation of scarce judicial resources." In re Health Mgnit. Sys. Inc. Sec.

Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (citations and quotation marks omitted). The

Second Circuit has explained that "[t]he standard for granting such a motion is strict, and

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reconsideration will generally be denied unless the moving party can point to controlling

decisions or data that the court overlooked matters, in other words, that might reasonably be

expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d

255, 257 (2d Cir. 1995). Courts in this district have held that "[r]econsideration is appropriate

only where there is 'an intervening change of controlling law, newly available evidence, or the

need to correct a clear error or prevent manifest injustice." Sutherland v. Ernst & Young LLP,

No. 10 Civ. 3332, 2012 WL 130420, at * 1 (S.D.N.Y. Jan. 17, 2012) (quoting Official Comm. of

Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F. 3d 147, 167 (2d Cir.

2003)).

Here, Mr. Wu's only argument for why the Court must reconsider its order is that his

motion papers identify three relevant cases from this District "that he did not have an opportunity

to fully present at the hearing before the Court issued its January 12, 2012 Order." (Lin Wu's

Reply Mem. of Law in Support of Motion for Reconsideration (Dkt. No. 49) at 2.) Mr. Wu

offers no explanation for why he lacked the opportunity to present these cases in his earlier

submissions to the Court or at the January 12 Conference. He was on notice of these issues since

January 5, 2012 when the JKS Group filed its papers in opposition to the competing lead plaintiff

motions. He submitted a letter to the Court containing extensive citations to similar case law and

had the opportunity to add any other authorities or arguments at the January 12 Conference.

Thus, Mr. Wu's motion fails to meet the strict standards for granting a motion for

reconsideration.

However, given the somewhat convoluted procedural posture of the lead plaintiff

appointment process in this case, the motion for reconsideration is the first time that many issues

that are relevant to the Court's resolution of the lead plaintiff motions were formally briefed for

the Court. Thus, the Court will consider the arguments raised in Mr. Wu's motion for

reconsideration in its review of the competing lead plaintiff motions, even though the motion for

reconsideration itself is denied.

III. Appointment of Lead Plaintiff Under the PSLRA

At the January 12 Conference, the Court expressed the preliminary view that the JKS

Group would be permitted to move for appointment as lead plaintiff and would likely be the

presumptive lead plaintiff. The Court reaffirms that decision and provides more extensive

explanation of its decision here.

A. Policy and Procedure Under the PSLRA

As summarized by a decision in this district, Congress enacted the PSLRA in 1995

in response to perceived abuses in securities fraud class actions. The purpose behind the PSLRA was to prevent "lawyer-driven" litigation, and to ensure that "parties with significant holdings in issuers, whose interests are more strongly aligned with the class of shareholders, will participate in the litigation and exercise control over the selection and actions of plaintiffs' counsel."

Welt v. Lee, 199 F.R.D. 129, 131 (S.D.N.Y. 200 1) (quoting In re Oxford Health Plans, Inc., Sec.

Litig., 182 F.R.D. 42, 43-44 (S.D.N.Y. 1998) ("Oxford 1")) (quotation marks omitted). As Judge

Rakoff explained in another decision,

The theory of these provisions was that if an investor with a large financial stake in the litigation was made lead plaintiff, such a plaintiff. . . would be motivated to act like a "real" client, carefully choosing counsel and monitoring counsel's performance to make sure that adequate representation was delivered at a reasonable price.

In re: Razorfish, Inc. Sec. Litig., 143 F. Supp. 2d 304, 307 (S.D.N.Y. 2001). See also Barnet v.

Elan Corp., PLC, 236 F.R.D. 158, 161 (S.D.N.Y. 2005) ("In other words, by enacting the

PSLRA, Congress sought to encourage class members with the largest purported losses to act as

lead plaintiffs in private securities litigation.").

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In accordance with this policy, the PSLRA provides for extensive judicial involvement in

the process of selecting a lead plaintiff and lead counsel in a securities class action. The Act

carefully sets forth the procedure for doing so and the criteria to be applied.

The first step in the process is that, within twenty days of filing a putative class action,

the plaintiff must publish "in a widely circulated national business-oriented publication or wire

service," a notice to the class, informing the members of the class of the pendency of the action,

and their right to file a motion for appointment as lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(A)(i).

Within sixty days of publication of the notice, any member or members may apply to the court to

be appointed as lead plaintiff(s). Id. The Act further provides that within ninety days of the

publication of the notice, the court shall consider any motion made by a purported class member

in response to the notice. 15 U.S.C. § 78u-4(a)(3)(B)(i).

Under the PSLRA, the court is to appoint as lead plaintiff the member or members of the

purported class that is or are the "most capable of adequately representing the interests of class

members," referred to in the statute as the "most adequate plaintiff." Id. The PSLRA establishes

a rebuttable presumption that the "most adequate plaintiff' is the "person or group of persons"

that (1) "has either filed the complaint or made a motion in response to a notice under

subparagraph (A)(i)"; (2) "in the determination of the court, has the largest financial interest in

the relief sought by the class"; and (3) "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).

This presumption may be rebutted "only upon proof by a member of the purported

plaintiff class that the presumptively most adequate plaintiff' (1) "will not fairly and adequately

protect the interest of the class"; or (2) "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). Finally, as

to the selection of lead counsel, the PSLRA states that "[t]he most adequate plaintiff shall,

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subject to the approval of the court, select and retain counsel to represent the class." 15 U.S.C. §

78u-4(a)(3)(13)(v).

B. Largest Financial Interest

The PSLRA does not specify how the "largest financial interest in the relief sought by the

class" is to be measured. Courts in this District generally look at the following factors to

determine financial interest:

(1) the total number of shares purchased during the class period; (2) the net shares purchased during the class period (in other words, the difference between the number of shares purchased and the number of shares sold during the class period); (3) the net funds expended during the class period (in other words, the difference between the amount spent to purchase shares and the amount received for the sale of shares during the class period); and (4) the approximate losses suffered.

Kaplan v. Gelfond, 240 F.R.D. 88, 93 (S.D.N.Y. 2007) (citations omitted). It is well settled that

"[f]inancial loss, the last factor, is the most important element of the test." Varghese v. China

ShenghuoPharni. Holdings, Inc., 589 F. Supp. 2d 388, 395 (S.D.N.Y. 2008) (citing Reimer v.

Anibac Fin. Group, Inc., Nos. 08 Civ. 411 et al., 2008 WL 2073931, at *3 (S.D.N.Y. May 9,

2008)).

There is not a significant dispute about the potential lead plaintiffs' respective financial

interests here. Each potential lead plaintiff or plaintiffs submitted certifications attesting to the

number of shares they purchased and sold, and what their recoverable losses would be. Of the

movants still vying for lead plaintiff status, Lin Wu showed recoverable losses of approximately

$43,183 (See Declaration of Albert Y. Chang in Support of Motion of Lin Wu for Appointment

as Lead Plaintiff and Approval of Selection of Lead Counsel, Ex. C (Dkt. No. 28)), while the

JKS Group showed recoverable losses totaling approximately $515,527. (Joint Declaration of

Vaughn Leroy Meyer, Richard Matkevich, Abdullah Al Mahmud, and Azriel Shusterman ("JKS

Group Dec."), Ex. A (Dkt. No. 39).) (Mr. Meyer showed losses of approximately $244,495, Mr.

Shusterman showed losses of approximately $121,698, Mr. Mahmud showed losses of

approximately $120,785 and Mr. Matkevich showed losses of approximately $28,549.)

Based upon the financial interests alone, the JKS Group would be the presumptive lead

plaintiff.

C. Opposition Arguments

Notwithstanding the fact that the JKS Group has the largest aggregate financial interest in

the case, Mr. Wu challenges the group's motion for appointment as lead plaintiff based on two

separate, but related, arguments. First, Mr. Wu argues that the composition of the JKS Group

runs afoul of the PSLRA's policy to curb lawyer-driven litigation because the group provides no

explanation for its formation or how it will act as a cohesive group in managing the litigation.

Thus, Mr. Wu argues, the JKS Group is not entitled to presumptive lead plaintiff status. Second,

Wu argues that the JKS Group's motion for appointment as lead plaintiff was untimely under the

PSLRA, thereby rendering the Group ineligible to be appointed lead plaintiff.

1. Appropriateness of a Group of Individual Investors as Lead Plaintiff

The PSLRA itself plainly contemplates the appointment of a group of individuals as lead

plaintiff. The Act directs the Court to "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). It also defines

the "most adequate plaintiff' as the "person or group ofpersons that. . . [inter al/a] in the

determination of the court, has the largest financial interest in the relief sought by the class . . .

§ 78u-4(a)(3)(B)(iii)(I)(emphasis added). See In re Tarragon Corp. Sec. Litig., No. 07 Civ.

7972, 2007 WL 4302732, at *2 (S.D.N.Y. Dec. 6, 2007) ("The issue is not whether losses or

holdings may be aggregated by members of a group seeking to become the lead plaintiff;

indisputably, they may."). However, as courts have recognized, the Act is silent as to the

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relationship, if any, that the members of the group must have with one another. See Goldstein v.

Puda Coal, Inc., No. 11 Civ. 2598, 2011 WL 6075861, at *6 (S.D.N.Y. Dec. 6, 2011) (citing

Varghese, 589 F. Supp. 2d at 392).

Courts have expressed particular concern when potential lead plaintiff groups appear to

have been "cobbled together" for the sake of the litigation. Razorfish, 143 F. Supp. 2d at 308.

Some courts analyze this issue in the context of whether the presumptive lead plaintiff can

"otherwise satisf[y] the requirements of Rule 23." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). See, e.g.,

Goldstein, 2011 WL 6075861, at *67. Other courts, however, have refused to recognize such

"cobbled together" groups entirely. See Razorfish, 143 F. Supp. 2d at 308; In re Pfizer Inc. Sec.

Litig., 233 F.R.D. 334, 337 (S.D.N.Y. 2005); In reDonnkennyInc. Sec. Litig., 171 F.R.D. 156,

157-58 (S.D.N.Y. 1997).

As Judge Jones explained in a recent decision, "the majority of courts 'have adopted an

intermediate position, permitting unrelated investors to join together as a group seeking lead-

plaintiff status on a case-by-case basis." Goldstein, 2011 WL 6075861, at * 6 (quoting

Varghese, 589 F. Supp. 2d at 392):

Although courts will resist appointing as lead plaintiff a group that is simply an artifice cobbled together by cooperating counsel for the obvious purpose of creating a large enough grouping of investors to qualify as lead plaintiff, a group consisting of persons that have no pre-litigation relationship may be acceptable as a lead plaintiff candidate so long as the group is relatively small and therefore presumptively cohesive.

Goldstein, 2011 WL 6075861, at * 6 (quoting Janbay v. Canadian Solar, Inc., et al., 272 F.R.D.

112, 119 (S.D.N.Y. 2010)) (quotation marks omitted).

Many courts examine the nature of the proposed grouping at the threshold level. In other

words, in order for a potential lead plaintiff group "to enjoy the rebuttable presumption that the

statute confers," the group must first show "some evidence that the members of the group will

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act collectively and separately from their lawyers." In re Tarragon, 2007 WL 4302732, at *2.

See also Varghese, 589 F. Supp. 2d at 392 ("[A] group must proffer an evidentiary showing that

unrelated members of a group will be able to function cohesively and to effectively manage the

litigation apart from their lawyers before its members will be designated as presumptive lead

plaintiffs.").

Thus, based on a review of the cases dealing with lead plaintiff groups of unrelated

investors, three basic factors are relevant to the inquiry: (1) the size of the group; (2) the

relationship between the parties; and (3) any evidence that the group was formed in bad faith (in

other words, that it is a mere "artifice cobbled together by cooperating counsel for the obvious

purpose of creating a large enough grouping of investors to qualify as 'lead plaintif

RazorfIsh, 143 F. Supp. 2d at 308). See Barnet, 236 F.R.D. at 162.

Courts have not defined a precise number of group members that would qualify the group

as "relatively small and therefore presumptively cohesive." Goldstein, 2011 WL 6075861, at *6.

However, courts appear to generally agree that a group comprising five or fewer members is

appropriate. See In re Cendant Corp. Litig., 264 F.3d 201, 267 (3d Cir. 200 1) (agreeing with the

SEC's position that "courts should generally presume that groups with more than five members

are too large to work effectively"); Weltz, 199 F.R.D. at 133 (noting that "there exists a point at

which the Act's express purpose of placing the control of securities class actions with a small

and finite number of plaintiffs (as opposed to plaintiffs' counsel) becomes wholly undermined by

the sheer size of the proposed plaintiff group," and citing decisions rejecting lead plaintiff groups

of over 100 class members).

Courts also look for evidence that the group will be able to function cohesively, which

can include evidence regarding "why the individual members chose to work as a group; how the

group intends to function collectively, including how they plan to communicate; the protocol the

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group will use to address disagreements; background information regarding individual members

of the group; and the members' willingness to accept the role and responsibilities of lead

plaintiff." Goldstein, 2011 WL6075861, at *7 See Janbay, 272 F.R.D. at 119-20 (approving

group that submitted evidence that the members are "sophisticated individuals who have

demonstrated their intent to participate directly in this litigation and their willingness and ability

to serve as class representatives" and that "they have a detailed decision-making structure in

place, with established methods for communication amongst themselves and with counsel");

Varghese, 589 F. Supp. 2d at 392 (listing factors for evaluating cohesiveness: "(1) the existence

of a pre-litigation relationship between group members; (2) involvement of the group members

in the litigation thus far; (3) plans for cooperation; (4) the sophistication of its members; and (5)

whether the members chose outside counsel, and not vice versa").

Here, the JKS Group is composed of four members, and so is not so large as to be per se

not cohesive. See Welt, 199 F.R.D. at 133. The group's formation was somewhat unusual in

that it is composed of members of different groups that earlier filed separate motions for

appointment as lead plaintiff. The group submitted a sworn declaration explaining that

[a]fter the filing of the original lead plaintiff motions, members of the JKS Group realized that the two groups with which they initially moved each had investors with massive losses, and, as groups, had losses that were close. Thus, Movants, who include the three single largest losses out of all competing movants, decided, rather than fight it out and risk appointment as lead plaintiff of an investor with a smaller loss who may lack the same motive to achieve a good result, to band together and litigate this action together.

(JKS Group Dec. at ¶ 5 (Dkt. No. 39).) The group was formed on a conference call with all

group members participating on December 22, 2011. (Id. ¶ 6.)

According to the declaration, each member of the group is a "knowledgeable and active

investor." (Id. ¶J 1-4.) The group states that it is "able and willing to act cohesively as a group

to protect the interests of the proposed class, independently of counsel," "understands the

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responsibilities of monitoring counsel to ensure that counsel is acting in the group's and the

proposed class's best interests," and "understands that it may petition the court at any time to

replace chosen counsel if, in [the group's] sole discretion, counsel is not acting in the best

interest of the group and the proposed class." (Id. ¶J 8-10.) Each group member will have one

vote on "all major issues affecting the litigation," and the members state that they "each

understand that they have the right to contact each other independently of counsel if needed to

discuss the case and the conduct of counsel." (Id. ¶J 6, 11.)

This declaration meets the standards outlined by the case law for demonstrating

cohesiveness. Although it is apparent that the group was formed with the assistance (if not at the

instigation) of counsel, it is equally apparent that the group was not formed in order to

manufacture a high enough financial interest to beat out any other competing lead plaintiffs. Not

only do the aggregate losses of the JKS Group dwarf those of Mr. Wu, but so do the individual

losses of three out of the four members of the group. Indeed, Messrs. Meyer, Mabmud, and

Shusterman had the three largest loss amounts of any other individual (whether in a group or

otherwise) that moved for appointment as lead plaintiff in this case. Even in decisions refusing

to recognize a group of individuals as a lead plaintiff, courts frequently base the decision on the

fact that the group was assembled "for the obvious purpose of creating a large enough of

grouping of investors to qualify as 'lead plaintiff." Razorfish, 143 F. Supp. 2d at 308; see also

Pfizer, 233 F.R.D. at 337 ("Nothing before the Court indicates that this aggregation is anything

other than an attempt to create the highest possible 'financial interest' figure under the

PSLRA."); cf Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. LaB ranche & Co.,

Inc., 229 F.R.D. 395, 410 (S.D.N.Y. 2004) (refusing to allow potential lead plaintiff to

supplement its filings to assert additional losses after the expiration of the sixty-day period,

because that plaintiff failed to show that "its belated attempt to increase the size of its losses is

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anything other than an attempt to manipulate the size of its losses based on information available

to it at the time of its original lead plaintiff motion" (citation and quotation marks omitted)).

That is plainly not the case here.

Some decisions rejecting aggregate groups have instead appointed the individual group

member with the largest loss as sole lead plaintiff, see In re Donnkenny, 171 F.R.D. at 157-58,

but the Court sees little that would be gained by that approach here. There is no reason to

suspect that Mr. Meyer would be any more likely to "control" counsel if he were sole lead

plaintiff than if he were joined by three other individuals, so long as the group can function

cohesively.

Given that the PSLRA favors the appointment of class members with the largest financial

interests in the litigation, it is clear why a group that is able to obtain lead plaintiff status only by

aggregating the much smaller losses of a number of class members potentially runs afoul of the

policy behind the statute. But where the group comprises the class members with, far and away,

the largest financial interest of any individual or group (that has otherwise come forward), then

the policy is not disserved by allowing those individuals to join together. See Reimer, 2008 WL

2073931, at *4 (appointing group of pension funds as lead plaintiff where each individual

member of the group had a greater financial interest than competing lead plaintiff, concluding

that the funds' "wish to combine their efforts in the litigation—as opposed to making separate

lead plaintiff motions—does not diminish the fact that they have a greater financial interest than"

the competing lead plaintiff); Barnet, 236 F.R.D. at 162 (noting that "even were the Court to

deconstruct the Group, two of its individual members would still have the 'largest financial

interest").

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2. Timeliness

Mr. Wu argues, both in the letter he submitted prior to the hearing, and more expansively

in his motion for reconsideration, that the JKS Group is ineligible to be appointed lead plaintiff

because the group's motion does not comply with the requirements of the PSLRA. In particular,

Mr. Wu argues, the group neither filed the complaint, nor made a timely motion in response to

the notice of the pendency of the action.

The PSLRA provides that all lead plaintiff motions must be made within sixty days of the

date on which the notice is published. 15 U.S.C. § 78u-4(a)(3)(A)(i). The JKS Group did not

move for appointment in this configuration until, at the earliest, January 5, 2012, when the group

filed its papers in opposition to the competing lead plaintiff motions, or, if not, on January 12,

2012, when the group filed its formal amended motion in response to the court's request at the

January 12 hearing. In either case, both of those dates were well after the sixty day deadline,

which was December 12, 2011.

Mr. Wu argues that courts must apply the timeliness requirements of the PSLRA strictly,

and points out that courts have disqualified plaintiffs even for missing the sixty-day deadline by

one day. See Skwortz v. Crayfish Co., Ltd., Nos. 00 Civ. 6766 et al., 2001 WL 1160745, at *5

(S.D.N.Y. Sept. 28, 2001); see also In re Telxon Corp. Sec. Litig., 67 F. Supp. 2d 803, 818 (ND.

Ohio 1999) ("The PSLRA is unequivocal and allows for no exceptions. All motions for lead

plaintiff must be filed within sixty (60) days of the published notice for the first-filed action. The

plain language of the statute precludes consideration of a financial loss asserted for the first time

in a complaint, or any other pleading, for that matter, filed after the sixty (60) day window has

closed."). Courts have particularly refused to recognize reconfigured groups that were formed

after the sixty-day deadline when it appears that the group was formed in order to create the

15

largest financial interest in order to secure lead plaintiff status. See, e.g., In re XAv[ Satellite

Radio Holdings Sec. Litig., 237 F.R.D. 13, 19-20 (D.D.C. 2006).

However, courts in this District and elsewhere have allowed amended motions by groups

that were configured after the sixty-day deadline where each member of the newly-formed group

had previously filed a timely motion. See, e.g., Schulman v. Lunienis, Ltd, Nos. 02 Civ. 1989 et

al., 2003 WL 21415287, at *4 (S.D.N.Y. June 18, 2003).1 InRozenbooni v. Van DerMoolen

Holding, N. V., No. 03 Civ. 8284, 2004 WL 846440 (S.D.N.Y. Apr. 14, 2004), the court

acknowledged that "Fun situations where a coalition is formed among some but not all movants

after the running of the statutory 60 days, the procedural propriety of permitting such an

arrangement may raise additional concerns in light of the PSLRA's strict filing requirements."

Id. at *4 The court noted in particular the potential problems "if persons seeking appointment as

lead plaintiff were allowed to manipulate the size of their financial loss by enlarging the class

period or adding additional persons to a 'group' in supplemental filings." Id. (quoting Telxon, 67

F. Supp. 2d at 819). Nevertheless, the court allowed two individuals who had filed timely

motions as individuals to join together as a group after the 60-day deadline. Id. at 5. The court

noted that although it was widely accepted that the PSLRA was designed to favor institutional

investor plaintiffs, no such institutional investor was available, and neither plaintiff indicated any

experience serving as a lead plaintiff in a previous action. Thus, the court concluded that

appointing the two individuals as co-lead plaintiffs "may help to ensure stability in the litigation

and perhaps the exercise of greater control over the action's progress." Id.

1 Other decisions ultimately denied the newly-formed groups' motions to be appointed lead plaintiff on other grounds, but did not disqualify the newly-formed group from seeking lead plaintiff status based on timeliness issues. See Sgalambo v. McKenzie, 268 F.R.D. 170, 173 n.20 (S.D.N.Y. 2010) (noting that "post-motion efforts to group movants to aggregate their lossess violates the strict sixty day deadline to file a motion for lead plaintiff appointment established by the [PSLRA]," but allowing post-motion joining of two unrelated entities that had separately filed timely motions, although ultimately appointing other entity with larger financial interest as lead plaintiff (emphasis added)); Newman v. Eagle Bldg. Tech., 209 F.R.D. 499, 501 n. 1 (S.D. Fla. 2002) (allowing two individual parties who had filed timely motions to file amended motion where they joined together as one group).

16

Here, the JKS Group members plainly did not join up in order to "manipulate the size of

their financial loss." Teixon, 67 F. Supp. 2d at 819. Indeed, as mentioned above, three out of the

four members of the group already have far and away the largest financial losses of any other

potential lead plaintiff. Moreover, each member of the JKS Group was part of a group that filed

a timely motion to be appointed lead plaintiff. In light of these facts, the Court holds that the

JKS Group is not barred from moving to serve as lead plaintiff because of untimeliness.

Mr. Wu argues that this case is distinguishable from cases like Schulman, because there,

the newly formed group was composed of members who had filed timely motions in their own

names to be appointed lead plaintiff, whereas here, the JKS Group is composed of individuals

who had previously moved as parts of other groups. (Lin Wu's Memorandum of Law in Support

of Motion for Reconsideration ("Mem. Recons.") (Dkt. No. 43) at 3-4.) However, the Court

agrees with the JKS Group's contention that this is a distinction without a difference. Mr. Wu

does not offer any explanation for why this distinction should matter. if parties who previously

filed timely motions may, in certain circumstances, join together after the deadline, so long as the

formation of the new group was not an effort to manipulate the process and manufacture the

largest financial interest, then it makes no material difference if those individuals originally filed

individually or as part of different groups.

Even if the Court were inclined to reject the motion of the newly configured group as

untimely, Mr. Wu would be no better served. Both the Individual Investors Group and the

Mahmud Group had far larger financial losses than Mr. Wu. Given that reality, the Court sees

little reason to prohibit the two presumptive "winning" parties from joining together as one when

doing so is consistent with the PSLRA, as it has been interpreted in this District.

D. The JKS Group Otherwise Satisfies Rule 23 of the Federal Rules

17

The final requirement of the PSLRA is that a potential lead plaintiff "otherwise satisfies

the requirements of Rule 23 of the Federal Rules of Civil Procedure." 15 U.S.C. § 78u-

4(a)(3)(13)(iii)(I). Rule 23 provides that a case may be brought as a class action 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.

Fed. R. Civ. P. 23. In practice, a potential lead plaintiff need only make a "preliminary showing"

that it satisfies the "typicality" and "adequacy" requirements of Rule 23 in order to satisfy the

PSLRA. Janbay, 272 F.R.D. at 120; see also Cendant, 264 F.3d at 264 ("[B]oth the statutory

structure and the legislative history suggest that the court's initial inquiry as to whether the

movant with the largest loss satisfies the typicality and adequacy requirements need not be

extensive.").

The typicality requirement is satisfied when the class members' 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). However, courts also hold that the lead plaintiff's claims "need not be identical" to the

claims of the class to satisfy this requirement. Skwortz, 2001 WL 1160745, at *6.

Here, the claims of the JKS Group are based on losses suffered as investors in JinkoSolar

ADSs as a result of alleged material misstatements by Defendants. These claims arise out of the

same course of events and will involve the same legal arguments as the claims of the class as a

whole. Thus, typicality has been established for purposes of the PSLRA.

In order to satisfy the adequacy requirement, a potential lead plaintiff must show that "(1)

class counsel is qualified, experienced, and generally able to conduct the litigation; (2) there is

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no conflict between the proposed lead plaintiff and the members of the class; and (3) the

proposed lead plaintiff has a sufficient interest in the outcome of the case to ensure vigorous

advocacy." Foley v. Transocean Ltd., eta,?., 272 F.R.D. 126, 131 (S.D.N.Y. 2011).

The Court addressed most of these concerns in the discussion above concerning the JKS

Group's showing that their grouping was cohesive and that the group members' large financial

interest in the litigation will motivate them to vigorously pursue a good result for the class. The

Court does not find that there is any conflict between the JKS Group and the members of the

class. The Court also finds that the JKS Group has retained counsel that is "qualified,

experienced, and generally able to conduct the litigation." Id. Both of the law firms representing

the JKS Group have extensive experience, and demonstrated success, prosecuting cases similar

to the instant case. Thus, the JKS Group has made the requisite showing of adequacy under Rule

23 to satisfy the PSLRA.

E. Rebuttal Arguments

The PSLRA provides that the presumptive lead plaintiff may be unseated "only upon

proof by a member of the purported plaintiff class that the presumptively most adequate

plaintiff' (1) "will not fairly and adequately protect the interest of the class"; or (2) "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).

No arguments have been made that the JKS Group is subject to any unique defenses that

would prevent it from adequately representing the class. 2 Mr. Wu's arguments that the JKS

Group will not fairly and adequately protect the interests of the class have been addressed above.

Thus, the presumptive lead plaintiff status of the JKS Group has not been rebutted.

2 As counsel for the JKS Group acknowledged at the January 12 Conference, the Individual Investor Group, as it was originally constituted, potentially was subject to certain loss causation defenses as a result of the timing of the purchases and sales of group member Marco Peters. However, Mr. Peters is not a part of the JKS Group.

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III. Lead Counsel Appointment

The PSLRA provides that "[t]he most adequate plaintiff shall, subject to the approval of

the court, select and retain counsel to represent the class." 15 U.S.C. § 78u-4(a)(3)(B)(v). "The

PSLRA evidences a strong presumption in favor of approving a properly-selected lead plaintiff's

decisions as to counsel selection and counsel retention." Varghese, 589 F. Supp. 2d at 398

(citation and quotation marks omitted). The JKS Group has selected as co-lead counsel the law

firms of Bernstein Liebhard LLP ("Bernstein") and Zamansky & Associates, LLC

("Zamansky").

Both firms have submitted resumes demonstrating extensive experience and success

prosecuting cases similar to this one, and so the JKS Group's choice of co-lead counsel is

approved. The Court is cognizant of the fact that when the Mahmud Group originally moved to

be appointed lead plaintiff, the group's selected counsel was Bernstein alone. The JKS Group

does not provide specific explanation for why two law firms are now necessary to prosecute this

case. However, given the policy of the PSLRA to allow lead plaintiffs to select their own

counsel, the Court will approve the JKS Group's selection. "This is done with the understanding

that there shall be no duplication of attorney's services and that the use of co-lead counsel will

not in any way increase attorney's fees and expenses." Oxford I, 182 F.R.D. at 50 (citing

Donnkenny, 171 F.R.D. at 158).

IV. Certification Under § 1292(b)

At the January 12 Conference, Mr. Wu requested that if the Court allows the JKS Group

to file a motion for appointment as lead plaintiff after the sixty-day deadline, then the Court

certify that decision for interlocutory appeal under Section 1292(b). Mr. Wu renews that request

in his motion for reconsideration.

20

Section 1292(b) allows a district judge to certify an order that is not otherwise appealable

for interlocutory appeal when that order (1) "involves a controlling question of law"; (2) "as to

which there is substantial ground for difference of opinion"; and (3) "an immediate appeal from

the order may materially advance the ultimate termination of the litigation." 28 U.S.C. §

1292(b). "The determination of whether Section 1292(b) certification is appropriate under the

above standards is in the discretion of the district court." Primavera Familienstifung v. Ask/n,

139 F. Supp. 2d 567, 569-70 (S.D.N.Y. 2001). Indeed, "district court judges have broad

discretion to deny certification even where the statutory criteria are met." Century Pac., Inc. v.

Hilton Hotels Corp., 574 F. Supp. 2d 369,370 (S.D.N.Y. 2008) (citation omitted).

An interlocutory appeal under Section 1292(b) is "a rare exception to the final judgment

rule that generally prohibits piecemeal appeals," Koehler v. Bank ofBermuda Ltd, 101 F.3d 863,

865 (2d Cir. 1996), and should be used only in "exceptional cases where early appellate review

might avoid protracted and expensive litigation." Tyco Int'l, Ltd. v. Kozlowski, No. 02 Civ.

7317, 2011 WL 2038763, at * 1 (S.D.N.Y. May 24, 2011) (citation and quotation marks omitted).

See also Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 426 F. Supp. 2d 125, 127

(S.D.N.Y. 2005) ("The Court of Appeals repeatedly has emphasized that a district court is to

'exercise great care in making a § 1292(b) certification." (quoting WestwoodPharm., Inc. v.

Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992))); Sec. and Exch. Comm 'n v.

Credit Bancorp, Ltd., 103 F. Supp. 2d 223, 226 (S.D.N.Y. 2000) ("Section 1292(b) was not

intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary

litigation or to be a vehicle to provide early review of difficult rulings in hard cases." (internal

citations omitted)).

Mr. Wu fails to demonstrate the exceptional circumstances to warrant an interlocutory

appeal here.

21

Mr. Wu's request for certification must be denied first and foremost because he cannot

show that certification will "materially advance the ultimate termination of the litigation." 28

U.S.C. § 1292(b). Courts have held that immediate appeal advances the ultimate termination of

litigation if the "appeal promises to advance the time for trial or to shorten the time required for

trial." Consub Delaware LLC v. Schahin Engenharia Liniitada, 476 F. Supp. 2d 305, 310

(S.D.N.Y. 2007) (citation omitted). An immediate appeal here would have neither effect. At

best, allowing Mr. Wu to appeal the Court's order allowing the JKS Group to file a motion after

the sixty-day deadline will not substantially delay the ultimate termination of the litigation, but

the Court is doubtful of even that. Even if the case proceeds while the appeal is being

considered, the Court anticipates that the parties would request the delay of discovery or other

deadlines while a cloud of uncertainty as to who the lead plaintiff will be hovers over the case.

Either way, simply failing to delay the litigation is insufficient to meet the third prong of the

Section 1292(b) test.

Judge Brieant declined to certify an interlocutory appeal for just that reason under

circumstances similar to these. See In re Oxford Health Plans, Inc., 182 F.R.D. 51, 53 (S.D.N.Y.

1998) ("Oxford Ii"). In Oxford J, the court appointed three co-lead plaintiffs under the PSLRA.

182 F.R.D. at 49. One of the appointed co-lead plaintiffs requested certification of the question

whether the court had discretion to appoint unrelated parties as co-lead plaintiffs. Three weeks

later, the Court issued Oxford II, denying the request, primarily because the court had already

"determined which plaintiffs [would] control the litigation and the case [was] ready to proceed

under that structure," thus, the court concluded, "rather than advancing the litigation,

certification would substantially delay it ....182 F.R.D. at 53. That logic is fully applicable to

this case.

22

In any event, even if the third prong were met, Mr. Wu also cannot meet the other two

prongs of the Section 1292(b) requirements, showing a "controlling question of law as to which

there is substantial ground for difference of opinion." 28 U.S.C. § 1292(b).

The Second Circuit has not precisely defined a "controlling question of law," but has

suggested that the court should consider whether "reversal of the district court's opinion could

result in dismissal of the action; reversal of the district court's opinion, even though not resulting

in dismissal, could significantly affect the conduct of the action; or, the certified issue has

precedential value for a large number of cases." PrimaveraFanillienstifung, 139 F. Supp. 2d at

570 (citingKlinghoffer v. S.N.C. AchilleLauro, 921 F.2d 21, 24-25 (2d Cir. 1990)). Substantial

ground for difference of opinion exists "when there is conflicting authority on the question, or

the question is particularly difficult and of first impression for the circuit." Tyco, 2011 WL

2038763, at *5 (citation omitted). The Second Circuit has cautioned, however, that "the mere

presence of a disputed issue that is a question of first impression, standing alone, is insufficient

to demonstrate a substantial ground for difference of opinion." In reFlor, 79 F.3d 281, 284 (2d

Cir. 1996).

Mr. Wu argues that the question whether the PSLRA's sixty-day deadline must be

"strictly applied" is a "controlling question of law." (Mem. Recons. at 6.) Mr. Wu certainly

cannot show that reversal of the Court's order would result in dismissal of the action. And

although the selection of a lead plaintiff certainly "affects the conduct" of an action, it is not

clear that reversal of this order would result in a substantially different result for the case. Even

if the Court refused to recognize the JKS Group, the two groups whose members compose the

JKS Group (the Individual Investor Group and the Mahmud Group) each had vastly larger

financial interests in the case than Mr. Wu. And even if the Court went as far as the minority

view expressed in Donnkenny, 171 F.R.D. at 157-58, and refused to allow any groups to serve as

23

lead plaintiffs, three of the individual members of the JKS Group had much higher losses than

Mr. Wu. 3

Nevertheless, the Court agrees that the question whether a court may relax the sixty-day

filing deadline to allow a reconfigured group to seek appointment as lead plaintiff when the

members of that group had previously filed timely motions for appointment is a purely legal

question that has not been addressed by the Second Circuit. The Court will also assume

arguendo that clear guidance from the Circuit on this question would be of some use to district

courts in applying the PSLRA.

The problem is that Mr. Wu has not shown a substantial ground for disagreement on the

precise question at issue. The Court requested that the JKS Group file a motion after the sixty-

day deadline as a housekeeping matter, but each of the members of the group also filed timely

motions for appointment and the reconfiguration of the group was plainly not an attempt to

manufacture the largest financial interest in the case. This decision is fully consistent with all of

the authority that Mr. Wu cites. In Skwortz, the court refused to allow a lead plaintiff to file an

initial motion on the sixty-first day, a wholly different situation from the one here. 2001 WL

1160745, at 5. In Sgalanibo, the court noted in passing that a group combining two lead

plaintiffs could not have joined together after the deadline to "have their losses aggregated for

the purposes of calculating the movant with the 'largest financial interest in the relief sought,"

because "post-motion efforts to group movants to aggregate their losses violates the strict sixty

day deadline to file a motion for lead plaintiff appointment" under the PSLRA. 268 F.R.D. at

173 n.20. But the court considered the group's motion and only declined to appoint the group

lead plaintiff because it did not have the largest financial interest in the case, not because the

In fact, W.J. Chiang, who withdrew his motion, also had slightly higher losses than Mr. Wu, as did the JinkoSolar Investor Group, which filed a notice of non-opposition to the competing lead plaintiff motions but stated that the group stood ready to step in as lead plaintiff if the presumptive lead plaintiffs were ultimately not appointed. (Dkt. No. 37.) Thus, Mr. Wu is, in fact, last in line of all of the parties that filed motions for lead plaintiff status.

24

group was formed after the deadline. Id. at 174. In Pirelli, the court refused to allow a potential

lead plaintiff to supplement its loss figures after it had already filed its motion and after the sixty-

day deadline because the movant's effort was an "attempt to manipulate the size of its losses

based on information available to it at the time of its original lead plaintiff motion." 229 F.R.D.

at 410. Although this decision speaks broadly about the importance of the deadlines mandated

by the PSLRA, it is inapposite to the decision here. In the two cases from this district that

confronted the actual issue before the Court whetherlead plaintiff candidates who filed timely

motions may group together after the deadline thecourts' decisions are consistent with this

Court's order. See Schulman, 2003 WL 21415287, at *4; Rozenbooni, 2004 WL 846440, at 5.

Thus, even if the Court were to find that there is a "controlling question of law" here, it is not

one "as to which there is substantial ground for difference of opinion." 28 U.S.C. § 1292.

Given the "great care" that the District Court must take in exercising its discretion to

certify an order pursuant to Section 1292(b), Aristocrat Leisure, 426 F. Supp. 2d at 127, the

Court declines to certify an appeal of the order here. Mr. Wu argues that fairness concerns

compel an interlocutory appeal because "unless he is granted immediate appellate review, Mr.

will lose his statutory right to control a class action in which he has tens of thousands of dollars

at stake" and would have little "recourse on appeal of a final judgment" to unwind the entire

litigation to allow him to start over as lead plaintiff. (Mem. Recons. 8-9.) In response to this

concern, the Court notes that even if fairness weighed in favor of certification of an interlocutory

appeal, the Court cannot certify a decision if the requirements of Section 1292(b) are not met.

And, in any event, Mr. Wu's fairness argument is undercut by the fact that even if he were to

prevail on appeal, there are several other groups and individuals who would be before him in line

to be appointed as lead plaintiff.

25

As Judge Brieant warned in Oxford II, "the District Court should not lose credibility with

the Court of Appeals by certifying interlocutory appeals simply to accommodate requests of

counsel who are dissatisfied with or inconvenienced by a ruling made by the District Court, or to

entice the Court of Appeals to provide more grist for the law reviews." 182 F.R.D. at 53.

Accordingly, because the Court's order allowing the JKS Group to file its motion after the sixty-

day deadline does not meet the requirements of Section 1292(b), Mr. Wu's request to certify this

order for interlocutory appeal is denied.

V. Conclusion

For the foregoing reasons, the JKS Group's amended motion to be appointed lead

plaintiff and to appoint Bernstein Liebhard LLP and Zamansky & Associates, LLC as lead

counsel (Dkt. No. 41) is GRANTED. All other motions to be appointed lead plaintiff (Dkt. Nos.

19, 22, 25, 29, and 32) are DENIED. Lin Wu's motion for reconsideration and request for

certification of an interlocutory appeal under Section 1292(b) (Dkt. No. 42) are DENIED.

The parties shall submit a status letter to the Court no later than March 30, 2012 setting

forth the next steps in the case, including whether lead plaintiffs intend to file an Amended

Complaint.

SO ORDERED.

Dated: New York, New York March 19, 2012

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