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KBC Asset Mgmt. NV v. McNamara

United States District Court, D. Delaware

February 2, 2015

KBC ASSET MANAGEMENT NV, derivatively on behalf of CHEMED CORPORATION, Plaintiff,
v.
KEVIN J. MCNAMARA, et al., Defendants, And CHEMED CORPORATION, a Delaware corporation, Nominal Defendant. MILDRED A. NORTH, derivatively on behalf of CHEMED CORPORATION, Plaintiff,
v.
KEVIN J. MCNAMARA, et al., Defendants, And CHEMED CORPORATION, a Delaware corporation, Nominal Defendant

Page 600

For KBC Asset Management N.V., derivatively on behalf of Chemed Corporation, Plaintiff (1:13-cv-01854-LPS-CJB): Peter Bradford deLeeuw, LEAD ATTORNEY, Jessica Zeldin, Rosenthal, Monhait & Goddess, P.A., Wilmington, DE; Gregg S. Levin, Joshua C. Littlejohn, William S. Norton, PRO HAC VICE.

For Kevin J. Mcnamara, Defendant (1:13-cv-01854-LPS-CJB): Peter J. Walsh, Jr, LEAD ATTORNEY, Richard L. Horwitz, Potter Anderson & Corroon, LLP, Wilmington, DE; Michael A. Paskin, Timothy G. Cameron, PRO HAC VICE.

For Joel F. Gemunder, Patrick P. Grace, Thomas C. Hutton, Walter L. Krebs, Andrea R. Lindell, Thomas P. Rice, Donald E. Saunders, Arthur V. Tucker, Jr., George J. Walsh, III, Frank E. Wood, Timothy S. O'Toole, David P. Williams, Ernest J. Mrozek, Chemed Corporation, a Delaware Corporation, Defendants (1:13-cv-01854-LPS-CJB): Peter J. Walsh, Jr, LEAD ATTORNEY, Richard L. Horwitz, Potter Anderson & Corroon, LLP, Wilmington, DE.

For Mildred A North, Plaintiff (1:14cv1209): Peter B. Andrews, LEAD ATTORNEY, Andrews & Springer LLC, Wilmington, DE USA; Francis A. Bottini, Jr., PRO HAC VICE.

For Kevin J Mcnamara, Defendant (1:14cv1209): Peter J. Walsh, Jr, Richard L. Horwitz, LEAD ATTORNEYS, Potter Anderson & Corroon, LLP, Wilmington, DE USA; Michael A. Paskin, Timothy G. Cameron, PRO HAC VICE.

For David Williams, Timothy O'Toole, Joel F Gemunder, Patrick B Grace, Walter L Krebs, Peter J. Walsh, Jr, Andrea R Lindell, Richard L. Horwitz, Thomas P Rice, Donald E Saunders, George J Walsh, III, Frank E Wood, Thomas C Hutton, Chemed Corporation, Defendants (1:14cv1209): Peter J. Walsh, Jr, Richard L. Horwitz, LEAD ATTORNEYS, Potter Anderson & Corroon, LLP, Wilmington, DE USA.

For Kbc Asset Management N.V., Movant (1:14cv1209): Peter Bradford deLeeuw, LEAD ATTORNEY, Rosenthal, Monhait & Goddess, P.A., Wilmington, DE USA.

Page 601

MEMORANDUM OPINION

Christopher J. Burke, UNITED STATES MAGISTRATE JUDGE.

In these related shareholder derivative suits (referred to herein as the " KBC Action " and the " North Action," respectively), presently pending before the Court are Plaintiff KBC Asset Management NV's (" KBC" ) " Motion to Consolidate and Appoint Lead Plaintiff, Lead Counsel and Liaison Counsel" (" Motion" ). (D.I. 30; North Action D.I. 38)[1] No party in either action opposes the request for consolidation. However, the Motion is otherwise opposed by Plaintiff Mildred A. North

Page 602

(" North" ). The individual Defendants (" Individual Defendants" )[2] and nominal Defendant Chemed Corporation (" Chemed," and collectively with the Individual Defendants, " Defendants" ) take no position on the remainder of the Motion. For the reasons stated below, the Court GRANTS KBC's Motion.

I. BACKGROUND

KBC filed its Complaint on November 6, 2013. (D.I. 1) In that KBC Action, in lieu of an Answer, Defendants filed a motion seeking dismissal of the Complaint pursuant to Federal Rules of Civil Procedure 12(b) and 23.1. (D.I. 12) That motion was fully briefed in May 2014. (D.I. 18).

North, in the meantime, had filed her Complaint on November 14, 2013, in the United States District Court for the Southern District of Ohio (" Southern District of Ohio" ). ( North Action, D.I. 1) North thereafter moved the United States Judicial Panel on Multidistrict Litigation (the " MDL Panel" ) to centralize the litigation in the Southern District of Ohio; the MDL Panel later denied that motion. ( North Action, D.I. 21) Upon Defendants' request, the Southern District of Ohio thereafter transferred the North Action to this Court. ( North Action, D.I. 28).

In light of the transfer of the North Action, on September 29, 2014, Chief Judge Leonard P. Stark ordered that the pending motion to dismiss in the KBC Action should be denied without prejudice. (D.1. 29; North Action, D.I. 31) Chief Judge Stark then ordered the KBC Action and the North Action be referred to the Court for all purposes, up to and including resolution of case-dispositive motions. ( Id.)

On October 15, 2014, KBC filed the instant Motion, (D.1. 30; North Action D.I. 38), which was fully briefed as of November 13, 2014, (D.I. 37; North Action D.I. 46). At KBC's request, (D.1. 39; North Action D.I. 48), the Court held oral argument on the Motion on January 22, 2015.

II. DISCUSSION

As its title indicates, the Motion raises three separate issues: (1) whether the cases should be consolidated; (2) whether KBC should be designated as Lead Plaintiff; and (3) whether KBC's counsel, Motley Rice LLC (" Motley Rice" ) and Rosenthal, Monhait & Goddess, P.A. (" Rosenthal Monhait" ) should be designated Lead Counsel and Liaison Counsel, respectively. The Court will address these issues in turn.

A. Consolidation

" If actions before the court involve a common question of law or fact, the court may ... consolidate the actions[.]" Fed.R.Civ.P. 42(a). The Court has broad authority to consolidate actions for trial involving common questions of law or fact if, in its discretion, it finds that such consolidation would " facilitate the administration of justice." Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673, 675 (3d Cir. 1964); see also Resnik v. Woertz, 774 F.Supp.2d 614, 624-25 (D. Del. Mar. 28, 2011). Although the existence of common questions of law or fact is a prerequisite to consolidation, their presence does not require consolidation pursuant to Federal Rule of Civil Procedure 42(a).

Page 603

Rohm & Haas Co. v. Mobil Oil Corp., 525 F.Supp. 1298, 1309 (D. Del. 1981). Instead, in considering such a motion, the Court must balance any savings of time and effort gained through consolidation against any " ...


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