One of the central achievements of the Private Securities Litigation Reform Act of 1995 (the “PSLRA”) was the creation of a role—the “Lead Plaintiff”—appointed at the outset of a case by the trial court and charged with the responsibility for shaping and directing the prosecution of a class action asserting violations of the federal securities laws. The Lead Plaintiff, guided by its appointed counsel, is responsible for deciding what claims should be brought, against which defendants, and on behalf of what class. There is no doubt that it alone can pursue, on a class basis, the claims asserted in the complaint filed in its name.
But what of the claims that fall outside of the Lead Plaintiff’s complaint? Can another plaintiff assert—on a class basis—claims (arising out of the same basic facts that form the basis of the Lead Plaintiff’s complaint) that are not included in the Lead Plaintiff’s complaint? Can someone else bring related class claims against a defendant the Lead Plaintiff decided not to sue? Can someone else bring related class claims for a period earlier (or later) than the class period defined in the Lead Plaintiff’s complaint? Implicitly, the Lead Plaintiff has concluded that the claims it elected not to pursue should not (or should not then) be brought on a class basis. Indeed, the Lead Plaintiff is appointed to that role for “the litigation as a whole,” 1Hevesi v. Citigroup Inc., 366 F.3d 70, 82 n.13 (2d Cir. 2004). and if it believes that claims should be brought, then it has an obligation to do so. In fact, even where the Lead Plaintiff has no standing to bring certain claims that fall within the “litigation as a whole,” it is empowered to associate with other plaintiffs who have such standing, and thereby cure the defect, enabling the Lead Plaintiff to bring such claims in its class complaint. 2Id. at 82-83.
So, by not asserting certain causes of action, or naming certain defendants, or extending the class period, the Lead Plaintiff is saying “no” to the prosecution of those claims on a class basis.
What is the consequence of that decision? The issue is central to what it means to be a PSLRA Lead Plaintiff, but it has received limited judicial attention and has garnered no commentary in secondary literature.
We believe that a PSLRA Lead Plaintiff has both positive decision-making power—the power to decide to bring claims against selected defendants over a given period—and negative decision-making power—the ability to prevent the pursuit of class claims arising out of the facts that give rise to the class claims that the Lead Plaintiff has chosen to pursue. The few courts that have confronted this issue agree; they have concluded that “no” means “no”: when a Lead Plaintiff decides not to pursue claims on a class basis, its decision cannot be undermined by someone else stepping in to bring those claims on behalf of a “niche” class. Anyone can bring those claims on an individual basis, but only the appointed Lead Plaintiff can bring them on behalf of a class.
I. Some Background
When Congress adopted the PSLRA, its primary purpose was to “empower investors so that they—not their lawyers—exercise primary control over private securities litigation.” 3S. Rep. No. 104-98, at 6, reprinted in 1995 U.S.C.C.A.N. 679, 683 (“Senate Rep.”). The drafters sought to achieve this goal by restructuring the framework of securities class actions to ensure that the litigation was driven by plaintiffs with significant skin in the game. 4See Michael A. Perino, Securities Litigation Under the PSLRA, §2.01; see also Senate Rep. at 689 (“One way of addressing [the problem of lawyer-driven litigation] is to restore lawyers and clients to their traditional roles by making it harder for lawyers to invent a suit and then attach a plaintiff.” (internal quotation marks omitted)). The idea was to create and empower a representative plaintiff that would act like, and wield the authority of, a plaintiff in an individual action. 5See In re Razorfish, Inc. Sec. Litig., 143 F. Supp. 2d 304, 307 (S.D.N.Y. 2001) (“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 – frequently a large institution or otherwise sophisticated investor – 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.”). The means Congress adopted was the creation of a Lead Plaintiff role with features, authority, and responsibilities unique to federal securities litigation. 6See Stephen J. Choi et al., Do Institutions Matter? The Impact of the Lead Plaintiff Provision of the Private Securities Litigation Reform Act, 83 Wash. U. L.Q. 869, 871 (2005) (“The PSLRA … contains a novel provision aimed at increasing client control over litigation – the lead plaintiff provision.”).
The Lead Plaintiff’s authority to exercise control over the action it is appointed to manage has been broadly defined, extending to “aspects of litigation such as discovery, choice of counsel, assertion of legal theories, retention of consultants and experts, and settlement negotiations.” 7In re Bank of Am. Corp. Sec. Litig., 263 F.3d 795, 801 (8th Cir. 2001). Indeed, courts have held that the Lead Plaintiff may make even more fundamental determinations regarding the scope of the action, such as the length of the class period and which among the claims available to the class should be asserted. 8In re Star Gas Sec. Litig., No. 04-cv-1766 (JBA), 2005 BL 2692, at *7 (D. Conn. Apr. 8, 2005) (“The appointed lead plaintiffs can decide how to frame their amended complaint in terms of an appropriate class period in their best judgment.”).
Among the tools a Lead Plaintiff can use to shape the class action is adding additional named plaintiffs in order to acquire standing to assert claims the Lead Plaintiff would otherwise be unable to prosecute. 9The Second Circuit’s recent decision in NECA-IBEW Health & Welfare v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012), cert. denied, 133 S. Ct. 1624, 185 L.Ed.2d 576 (2013), in part obviated the need for Lead Plaintiffs to rely on this approach in order to achieve standing. In that case, and on the facts there present, the court held that a Lead Plaintiff has standing to assert claims on behalf of investors in securities that the Lead Plaintiff itself did not purchase so long as the claims are based on the “same set of concerns” as the claim based on the securities the Lead Plaintiff did purchase. Id. at 162. That practice was approved by the U.S. Court of Appeals for the Second Circuit in Hevesi v. Citigroup Inc., 10366 F.3d 70 (2d Cir. 2004). a case in which a defendant had urged the adoption of a “per se rule that a class may not be certified where a lead plaintiff does not have standing to bring every available claim and none of the named plaintiffs who have standing to bring the additional claims has been vetted under the PSLRA.” 11Id. at 82. In declining to adopt that rule, the court noted that the defendant’s proposed approach would require the appointment of separate Lead Plaintiffs to bring the various claims available to the class as whole, and that such an approach “would contravene the main purpose of having a lead plaintiff—namely, to empower one or several investors with a major stake in the litigation to exercise control over the litigation as a whole.” 12Id. at 82 n.13. The special status of PSLRA Lead Plaintiffs articulated in Hevesi was reiterated in Police and Fire Retirement System of City of Detroit v. IndyMac MBS
, Inc., which upheld a district court order denying class members the right to intervene to assert claims that had been dismissed because no lead or named plaintiff had constitutional standing to assert them. 13721 F.3d 95, 111-12 (2d Cir. 2013), cert. granted, 134 S. Ct. 1515 (2014).
II. The Scope of the Lead Plaintiffs’ Authority to Limit the Class
The question addressed in this article—and recently confronted by several district courts—is whether the authority afforded to Lead Plaintiffs by the PSLRA extends beyond the capacity to grow the class (through addition of named plaintiffs or otherwise), to whether the Lead Plaintiff is empowered to prevent claims from being pursued on a class basis by excluding them from the complaint it files.
This question can arise out of several paradigms. First, the Lead Plaintiff will set inside and outside boundaries for the period in which potential class members must have purchased (or sold) securities, excluding purchasers (or sellers) from outside that period from the scope of the class definition. Second, the Lead Plaintiff may decline to assert certain claims that it believes are weak (or otherwise inappropriate), whose inclusion in the class case would, in its view, diminish the strength of that case. For example, a Lead Plaintiff might conclude that evidence supporting scienter is so limited that including a claim under the Securities Exchange Act of 1934 would not only generate motion practice, but would result in a substantial delay in the commencement of discovery as a result of the automatic discovery stay. 14See 15 U.S.C. §78u-4(b)(3)(B) (providing that “all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss” in an action under the Exchange Act). In a similar vein, a Lead Plaintiff might conclude that it is better for the class to work with certain former insiders, or advisors, rather than to sue them. And third, the Lead Plaintiff may only seek to assert claims on behalf of certain securities, leaving purchasers or holders of other securities outside the class definition.
In each of these paradigms, the Lead Plaintiff has made a decision—presumably consistent with the Lead Plaintiff’s fiduciary duty to act in the best interests of the class as a whole—that has resulted in the exclusion of potential plaintiffs and claims from the class definition, and claims from the class complaint.
The question whether others will then be able to undermine the Lead Plaintiff’s decision by pursuing parallel class actions is a critical one not only for Lead Plaintiffs, but also for courts, because the answer will impact the size and complexity of the proceedings they will need to manage. It is also a critical one for defendants, because the answer will shape the exposure they face and their ability to resolve that exposure efficiently.
To date, four district courts have confronted the issue of whether a Lead Plaintiff can preclude others from bringing claims, on a class basis, that the Lead Plaintiff has chosen not to assert. In three, the district court held that the Lead Plaintiff had that authority. In the fourth, the district court was persuaded by unique circumstances to permit the class member to bring a separate action.
In In re Lehman Brothers Securities and ERISA Litigation, 15No. 09-md-2017 (LAK) (S.D.N.Y.) (court orders and party filings available at: http://www. lehmansecuritieslitigation.com/html/courtdocuments.html). the Lead Plaintiffs had determined to restrict the class asserting 1933 Securities Act claims to purchasers of debt securities issued on and after Feb. 13, 2007. Class members who had purchased debt securities issued before that date—which the appointed Lead Plaintiffs had not—moved to lead a class consisting of purchasers of the earlier issued debt securities. The movants argued that they had the right to bring this separate class action because, by failing to assert those claims, the Lead Plaintiffs had “abandoned” them. They also argued that the Lead Plaintiffs could not assert authority over claims that did not belong to the class defined in the complaint the Lead Plaintiffs had filed. 16Bond Plaintiffs’ Memorandum of Law to Modify Pretrial Order No. 1, No. 09-md-2017 (LAK) (S.D.N.Y. Mar. 30, 2009), ECF No. 62. Judge Lewis A. Kaplan found those arguments “singularly unpersuasive,” and held that the Lead Plaintiffs had exclusive authority over what claims to assert, regardless of whether those claims fell within the defined class. He concluded that other parties could not interfere with that authority by commencing separate class actions that would override the Lead Plaintiffs’ decisions. 17Pretrial Order No. 9, No. 09-md-2017 (LAK) (S.D.N.Y. Apr. 24, 2009), ECF No. 86.
Judge Denny Chin 18In re Bank of Am.
Corp. Sec., Derivative & ERISA Litig. (“BoA I”), No. 09-md-2058 (DC), 2010 WL 1438980 (S.D.N.Y. Apr. 9, 2010). and Judge P. Kevin Castel 19In re Bank of Am.
Corp. Sec., Derivative & ERISA Litig. (“BoA II”), No. 10-cv-275 (PKC), 2011 WL 4538428 (S.D.N.Y. Sept. 29, 2011). confronted the same issue in In re Bank of America Corp. Securities, Derivative and ERISA Litigation, which arose from Bank of America Corp.'s merger with Merrill Lynch. The Lead Plaintiffs had initially brought claims on behalf of purchasers of Bank of America common stock and preferred securities, but not on behalf of purchasers of options or debt securities. Three sets of investors moved to be appointed Lead Plaintiffs of their own niche class actions on behalf of holders of the securities excluded by the Lead Plaintiffs. The Lead Plaintiffs opposed those motions, arguing that they had not yet determined whether they wished to pursue those claims and that only they were “vested with the authority to decide what claims to assert against which defendants for what class period.” 20BoA I, 2010 WL 1438980, at *2. Judge Chin agreed, and denied the motions:
[I]n a securities class action, a lead plaintiff is empowered to control the management of the litigation as a whole, and it is within the lead plaintiff’s authority to decide what claims to assert on behalf of the class. Lead Plaintiffs have the authority to decide what claims to assert on behalf of securities holders. Permitting other plaintiffs to bring additional class actions now, with additional lead plaintiffs and additional lead counsel, would interfere with Lead Plaintiffs’ ability and authority to manage the [class action]. 21Id. (citations omitted).
When the Lead Plaintiffs determined to pursue options claims after all, Judge Castel—to whom the case had been reassigned upon Judge Chin’s appointment to the Second Circuit—held that the Lead Plaintiffs lacked standing to pursue any claim based on securities not held by a lead or named plaintiff, thereby dismissing Lead Plaintiffs’ claims based on all but one series of Bank of America options. One of the plaintiffs who had previously sought appointment as Lead Plaintiff of an options class once again sought to lead a niche class of options holders, arguing now that the Lead Plaintiffs had no authority to preclude him from bringing claims that they lacked standing to assert on their own. Judge Castel rejected that argument, holding that the Lead Plaintiffs’ lack of standing was “not meaningful” to the question of whether they could preclude others from bringing class claims that belonged to the class they were appointed to lead. 22BoA II, 2011 WL 4538428, at *2. Relying on Hevesi, Judge Castel noted that no high bar prevented Lead Plaintiffs from asserting options claims on behalf of the class: they need only add a named plaintiff who had purchased options in order to gain standing. Thus, the decision not to add a named plaintiff to gain standing to pursue options claims was a discretionary decision entitled to deference and no different from the multitude of other decisions that Lead Plaintiffs make to shape the litigation. 23Id. Judge Castel added:
In the framework proposed by [the options plaintiff], any consolidated securities fraud class action might then carry with it a corresponding ecosystem of separate class actions seeking relief on behalf of securities holders whose claims vary from the lead plaintiffs. [That] approach invites the type of lawyer-driven litigation that the PSLRA seeks to avoid, and would likely promote near-endless skirmishes about securities holders who fall outside a class definition and the degree to which their exclusion implicates matters of standing. 24Id.
In In re Facebook, Inc., IPO Securities and Derivative Litigation, 25No. 12-md-2389 (RWS), 2013 BL 217988 (S.D.N.Y. Aug. 13, 2013). Judge Robert W. Sweet also rejected a request by non-Lead Plaintiffs to sever their actions from a consolidated securities class action and to pursue claims, on a class basis, that the Lead Plaintiffs had determined not to assert. 26Id. at *1. In that case, the Lead Plaintiffs represented a consolidated class whose members had variously asserted claims under both the Securities Act and Securities Exchange Act. The consolidated class action complaint filed by Lead Plaintiffs, however, only asserted claims under the Securities Act. In response, plaintiffs who had asserted claims under the Securities Exchange Act (the “Exchange Act Plaintiffs”) in their originally filed complaints moved to sever their claims from the consolidated class, and for appointment as Lead Plaintiffs of that separate class. 27Id. at *1.
Judge Sweet denied the motion in its entirety, noting that “courts in [the Second] Circuit have consistently held that a lead plaintiff has the sole authority to determine what claims to pursue on behalf of the class.” 28Id. at *3. Citing Hevesi and the decisions by Judges Chin and Castel in In re Bank of America, Judge Sweet reasoned that “if the Exchange Act Plaintiffs are allowed to bring their own separate class action for their claims, it would render the PSLRA’s Lead Plaintiff provisions meaningless.” 29Id. at *5. He reached that conclusion notwithstanding the Exchange Act Plaintiffs’ assertion that they sought to represent a class including investors who had purchased Facebook stock on “private exchanges,” who therefore could not assert Securities Act claims and, as a result, were not represented in the consolidated action. Judge Sweet held that “[t]he Exchange Act Plaintiffs [could not] displace Lead Plaintiffs from their leadership role by laying claim to representation of a supposedly more inclusive class.” 30Id. at *6. In doing so, he agreed with Judge Castel that “[l]ead plaintiffs ‘necessarily make[] determinations that limit the class of shareholders. Inevitably, any class definition establishes boundaries as to who may recover’ as part of the class.” 31Id. at *6 (quoting BoA II, 2011 WL 4538428, at *2).
Finally, in In re New Oriental Education and Technology Group Securities Litigation, 32293 F.R.D. 483 (S.D.N.Y. 2013). Judge John G. Koeltl addressed a similar situation and reached—for reasons unique to that case—a different resolution. There, an institutional Lead Plaintiff was appointed to represent a class asserting securities claims. The Lead Plaintiff determined to assert class claims only on behalf of purchasers of American Depositary Shares issued by the defendant, and not on behalf of sellers of such shares or holders of option contracts. One plaintiff in the class (“Tardio”)—who had previously filed a complaint asserting claims on behalf of options holders, and who had unsuccessfully moved for appointment as Lead Plaintiff—filed a motion for relief from the district court’s order appointing the Lead Plaintiff. Tardio requested appointment as co-Lead Plaintiff so that claims on behalf of options holders could be asserted, or, in the alternative, that his claim be severed from the consolidated class action so that he could lead a separate class of options holders. 33Id. at 484.
Judge Koeltl denied Tardio’s request for appointment as Lead Plaintiff, holding that “[w]here a Lead Plaintiff has omitted certain claims from the class definition, a party may not assert those claims and seek to become co-lead plaintiff on that basis.” 34Id. at 486. Judge Koeltl continued:
Tardio has not raised any issues regarding [the lead plaintiff]’s adequacy to represent the class in the consolidated securities action. [The lead plaintiff] is not required to have standing to represent all possible claims in order to be appointed lead plaintiff, and Tardio does not have a right to become co-lead plaintiff simply by asserting claims not asserted by the lead plaintiff. 35Id. (citing Hevesi, 366 F.3d at 82).
Judge Koeltl did, however, permit Tardio to sever his claims from the consolidated action and bring a separate class action because of gamesmanship by the appointed Lead Plaintiff. In specific, the Lead Plaintiff had explicitly stipulated, as part of the consolidation process, that Tardio’s claims would be included in the action, and consolidation was granted on that basis.
36Id. at 487-88. III. Lead Plaintiffs: Real Clients With the Ability to Say “No”
This emerging consensus—that a Lead Plaintiff’s decision to forego particular claims cannot be undercut by others leading their own classes to pursue those rejected claims—is not only consistent with the law, but also furthers the PSLRA’s purposes and policy goals. It also does not prejudice rights belonging to potential plaintiffs.
To ensure that federal securities class actions would be driven by investor-plaintiffs, and not lawyers, the drafters of the PSLRA established a regime to guide courts in determining which plaintiff or set of plaintiffs should be appointed to exercise that authority and assume that responsibility. The purpose of this screening process is to “appoint as lead plaintiff ‘the member or members of the purported plaintiff class that [are] most capable of adequately representing the interests of class members.’” 37IndyMac, 721 F.3d at 111 (alteration in original) (quoting 15 U.S.C. §78u–4(a)(3)(B)(i)). The characteristics targeted—designed to yield as Lead Plaintiffs institutional investors with large financial stakes in the litigation—reflected an intent to ensure that the investor appointed Lead Plaintiff “would be motivated to act like a ‘real’ client.” 38In re Razorfish, 143 F. Supp. 2d at 307; see also H.R. Rep. No. 104-369, at 34, reprinted in 1995 U.S.C.C.A.N. 730, 733 (“The Conference Committee believes that increasing the role of institutional investors in class actions will ultimately benefit shareholders and assist courts by improving the quality of representation in securities class actions.”).
The court-appointed Lead Plaintiff assumes authority to make decisions in the course of the litigation parallel to those that would be within the scope of power of a “real” client. The PSLRA expressly empowers Lead Plaintiffs to select class counsel. 3915 U.S.C. §78u-4(a)(3)(B)(v). Embodied in this power is an intent to ensure that an “institutional plaintiff[] with expertise in the securities market and real financial interests in the integrity of the market would control the litigation, not lawyers.” 40In re Donnkenny Inc. Sec. Litig., 171 F.R.D. 156, 157-58 (S.D.N.Y. 1997).
To function as “real” plaintiffs, Lead Plaintiffs also need the power to say “no” effectively—indeed they have a duty to do so when, in an informed exercise of judgment, they conclude that saying “no” is best for the litigation as a whole. Many types of decisions that are commonly entrusted to Lead Plaintiffs—such as which laws to sue under, or the scope of the class period—may end up excluding potential class members; there is nothing inherently improper in that.
If a Lead Plaintiff’s decision were ignored, then instead of one efficiently managed case that focuses on the best claims and strategies, there could (and likely would) be a plethora of cases pursuing what the first-appointed Lead Plaintiff eschewed. The judicial burden would be exacerbated, as would the “hydraulic pressure” of securities class actions on defendants, likely leading to settlements that are driven by the burden of defending such cases, rather than their merits. 41Hevesi, 366 F.3d at 80 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 148 (2d Cir. 2001) (Jacobs, J. dissenting)).
The PSLRA was enacted to avoid this result. 42See Senate Rep. at 685 (“[The PSLRA] is intended to encourage plaintiffs’ lawyers to pursue valid claims for securities fraud and to encourage defendants to fight abusive claims.”). As Judge Castel held in In re Bank of America, permitting niche class actions would also “invite[ ] the type of lawyer-driven litigation that the PSLRA seeks to avoid, and would likely promote near-endless skirmishes about securities holders who fall outside a class definition and the degree to which their exclusion implicates matters of standing.” 43BoA II, 2011 WL 4538428, at *2.
Further, the duties imposed upon Lead Plaintiffs after appointment by the court, and the mechanisms available to Lead Plaintiffs to bring claims on behalf of the broadest class desirable, provide assurance that the framework adopted by courts in the Second Circuit does not give rise to concerns about effective representation of potential class members. After emerging from the PSLRA-mandated vetting process as the court-appointed class representative, the Lead Plaintiff assumes a fiduciary duty to serve the interests of the entire class. 44See In re Cendant Corp. Sec. Litig., 404 F.3d 173, 198 (3d Cir. 2005) (“The lead plaintiff is not the sole client in a PSLRA class action; instead, the lead plaintiff serves as a fiduciary for the entire class.”); In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 46-47 (S.D.N.Y. 1998) (“A class representative, once designated by the Court, is a fiduciary for the absent class members.” (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). This duty, combined with the broad authority provided to courts to oversee the management of class actions, amply addresses the possibility that Lead Plaintiffs would restrict the size of the class with aims other than the best interests of the class in mind. Nor would Lead Plaintiffs ordinarily have any selfish incentives to the contrary: a Lead Plaintiff who is able to assemble a large and inclusive class is not only able to apply more leverage on the defendant during the litigation, but is generally able to achieve a larger recovery in a final judgment. A Lead Plaintiff’s decision to limit the class in spite of that motivation is therefore rarely likely to raise conflict of interest concerns.
Moreover, any class members who disagree with a Lead Plaintiff’s decision to limit the scope of the class are free to bring their claims as individual actions. Although plaintiffs (and their lawyers) would no doubt prefer the economies of scale available in class litigation, plaintiffs have no “right” to pursue claims on a class basis. 45See Am. Express
Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309-10, 186 L. Ed. 2d 417 (2013) (“Nor does congressional approval of Rule 23 establish an entitlement to class proceedings for the vindication of statutory rights… . [T]here is no evidence of such an entitlement … . The Rule imposes stringent requirements for certification that in practice exclude most claims.”). And, in fact, such individual plaintiffs would often be able to rely on the record built by the Lead Plaintiffs in the class action when litigating their individual claims, thereby enjoying tremendous efficiencies.
Finally, Hevesi and IndyMac empowered Lead Plaintiffs to add named plaintiffs for whatever reason, including specifically to address any perceived standing issues that might have limited the Lead Plaintiffs’ ability to represent a broad spectrum of investors. The rejection by Hevesi and IndyMac of permitting successive Lead Plaintiffs even more powerfully counsels against permitting niche plaintiffs to run classes to pursue the very claims, time periods, defendants and the like that the Lead Plaintiffs have concluded should not be pursued. Otherwise, a core objective of the PSLRA would be subverted—a class action as a whole will be no more client and merits-driven than before the enactment of the PSLRA, as any limiting decision made by a conscientious Lead Plaintiff can be effectively overruled by interloping niche clients and their counsel.
IV. Conclusion
In securities class actions, the responsibility to make strategic decisions falls to the Lead Plaintiffs, who act as fiduciaries for the class as a whole. They are supposed to exercise judgment, which can mean that some theories, some potential defendants, and some class periods are not pursued. If that exercise of judgment results in some other party being permitted to pursue these claims on a class basis, then the appointed Lead Plaintiffs’ judgments have effectively been overruled. Quite clearly, the PSLRA was not designed to ensure that every conceivable claim against every conceivable party for the broadest conceivable class be litigated on a class basis. Thus, to preserve the authority of the Lead Plaintiff to make final decisions on behalf of the class, and to further the PSLRA’s policy goals, a Lead Plaintiff’s decision to forego claims—a Lead Plaintiff’s decision to say “no”—should be respected.
