Application of Dennis S. Ellis — In re January 2021 Short Squeeze Trading Litigation (Document 243-2)

Summary

The application of Dennis S. Ellis of Browne George Ross O'Brien Annaguey & Ellis LLP to be appointed as co-lead interim class counsel, entered on the docket April 26, 2021 as Document 243-2 in In re: January 2021 Short Squeeze Trading Litigation, Case No. 21-2989-MDL-ALTONAGA/Torres (Case 1:21-md-02989-CMA), in the U.S. District Court for the Southern District of Florida. Ellis is counsel for Robert Days in Days v. Robinhood Markets, Inc., No. 1:21-cv-21310-CMA. The application addresses the factors of Fed. R. Civ. P. 23(g)(1)(A)(i)–(iv) and states that the proposed leadership slate has the support of no less than 29 law firms. It proposes three co-leads: Ellis and Natalia Salas of the Ferraro Law Firm for the state law contract- and tort-based claims, and Frank Schirripa of Hach Rose Schirripa & Cheverie, LLP for the antitrust claims. The nine-page application is signed by Ellis.

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Date: 2021-04-26

Cite this document

“Application of Dennis S. Ellis — In re January 2021 Short Squeeze Trading Litigation (Document 243-2).” Original at archive.org, dated 2021-04-26. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-04-26-dennis-s-ellis-counsel-for-robert-days-in-days-v-robinhood-markets-inc-no-1/, SHA-256 01484cd42c5cc9cabd97d0e4e01f23cdc197c82c7f2ed660f55bcd48df984ed1.

Full text

Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-2989-MDL-ALTONAGA/Torres

In re:

JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION

THIS DOCUMENT RELATES TO
ALL ACTIONS.
_________________________________/

APPLICATION OF DENNIS S. ELLIS OF BROWNE GEORGE ROSS O’BRIEN
ANNAGUEY & ELLIS LLP TO BE APPOINTED AS CO-LEAD INTERIM CLASS
COUNSEL

Browne George Ross O’Brien Annaguey & Ellis LLP (“BGR”), by and through its

partner Dennis S. Ellis, counsel for Robert Days in Days v. Robinhood Markets, Inc., No. 1:21-

cv-21310-CMA, hereby applies for Mr. Ellis to be appointed as co-lead interim class counsel, as

part of the proposed leadership slate set forth herein.

PRELIMINARY STATEMENT

Retail traders captured the attention of the nation in January of this year, investing in

heavily-shorted securities like GameStop, and causing a “short squeeze” such that the

institutional investors holding the short interests lost significant amounts of money to the benefit

of the retail traders. The everyday Americans beat Wall Street. Unfortunately, purchase

restrictions were then imposed on retail traders, but not institutional investors, causing the retail

traders’ investments in the relevant securities to plummet to the tune of billions of dollars.

BGR is proud to be part of a proposed leadership slate that will represent the interests of

those everyday American retail traders. BGR is also proud that the proposed leadership slate is

not only imminently qualified, but reflects the diversity of the putative classes with regard to

1
Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 2 of 9

race, gender, geography, and age. BGR understands that this proposed leadership slate enjoys the

on-the-record support of no less than 29 law firms representing plaintiffs in cases consolidated

here, a strong majority, and for that support, BGR is grateful.1

Heading BGR’s team is name partner Dennis S. Ellis. Prior to joining BGR, Mr. Ellis

enjoyed a sophisticated litigation practice at international law firm Paul Hastings LLP for more

than 24 years, where he served as Global Chair of Complex Litigation and Arbitration. While

Mr. Ellis is well-known for representing international celebrities and his consumer class action

defense practice, he also has a notable track record of success on the plaintiff side. Examples

include obtaining the largest known judgment on behalf of a Chinese firm in a U.S. court, in

excess of $2.8 billion, and a $97.2 million jury verdict for claims related to an alleged failure to

disclose material information in an investment solicitation. Mr. Ellis leads an accomplished

group of BGR attorneys ready to devote significant resources on behalf of the putative classes in

this case.

Joining Mr. Ellis and BGR would be the Ferraro Law Firm, headed by partner Natalia

Salas, who would act as co-lead counsel with Mr. Ellis in focusing on the state law contract- and

tort-based claims brought against trading platforms like Robinhood. Primary responsibility for

the antitrust claims would be with Hach Rose Schirripa & Cheverie, LLP through partner Frank

Schirripa. Ms. Salas’s and Mr. Schirripa’s own applications will speak to their noteworthy

qualifications, but BGR is proud to support their proposed leadership roles in this case.

1
Because a significant group of counsel have remained neutral publicly, this figure actually
understates support for the slate including BGR. BGR and its proposed leadership partners have
communicated with counsel for all 50 cases, and have only been informed that counsel for two
cases supports a competing slate, and one member of that previously-proposed competing slate
withdrew its candidacy this morning.

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 3 of 9

BACKGROUND

On April 1, 2021, the Judicial Panel on Multidistrict Litigation transferred the In re:

January 2021 Short Squeeze Trading Litigation MDL to the Southern District of Florida, before

Your Honor. Dkt. No. 1. On April 19, 2021, the Court held its Initial Conference, at which,

among other things, the parties and the Court discussed the process upon which lead counsel

would be appointed. Dkt. No. 202.

Later the same day, the Court entered an Order, requiring that, if parties were unable to

reach an agreement concerning lead counsel, applications be submitted for the Court’s

consideration on April 26, 2021. Dkt. No. 209. The parties engaged in numerous discussions

concerning lead counsel, and while the leadership slate proposed by BGR herein garnered a

strong majority of support (see Ellis Decl, Exh. G), because there was not unanimous consent,

BGR now submits its application for a lead counsel appointment.

ARGUMENT

When appointing class counsel, pursuant to Rule 23(g) of the Federal Rules of Civil

Procedure, the Court must consider four factors: “(i) the work counsel has done in identifying or

investigating potential claims in the action; (ii) counsel's experience in handling class actions,

other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge

of the applicable law; and (iv) the resources that counsel will commit to representing the class[.]”

Fed. R. Civ. P. 23(g)(1)(A)(i)–(iv). The Court may also “consider any other matter pertinent to

counsel's ability to fairly and adequately represent the interests of the class[.]” Id. at 23(g)(1)(B).

BGR and Mr. Ellis satisfy these requirements entirely.2

2
These standards apply “equally to the appointment of interim lead counsel before certification.”
In re Disposable Contact Lens Antitrust Litig., No. 3:15-md-2626-J-20JRK, 2015 WL 10818781,
3
Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 4 of 9

A. BGR did significant work developing the claims in this action.

BGR filed one of the first lawsuits against Robinhood in the nation on January 28, 2021.

See Days v. Robinhood Markets, Inc., No. 1:21-cv-21310-CMA, Dkt. No. 1. However, unlike

many other counsel seeking leadership appointments, BGR did not simply rest on its laurels with

having an early-filed complaint. BGR continued to consider facts as they came to light, including

Robinhood’s arguments in opposition to a preliminary injunction motion in the Central District

of California, and its CEO’s Congressional testimony. Thus, while many of the other complaints

rely largely on early news reports, BGR’s complaint takes Robinhood’s defense that it was

forced to restrict trading based upon increased clearinghouse deposit requirements head-on, and

explains why Robinhood is nonetheless liable. Id. at Dkt. No. 23, ¶¶ 29–37, 43–56, 102–17.

These legal arguments will be front and center in this litigation, and BGR developed them.

Moreover, BGR took the lead in addressing the structure in which these consolidated

actions should proceed. That is, in response to the transfer motion filed by The Joseph Saveri

Law Firm, which incorrectly argued that each of the cases “assert the similar causes of action—

including claims for damages under Section 1 of the Sherman Act, 15 U.S.C. § 1” (MDL Docket,

Dkt. No. 1-1, 3), BGR made clear that antitrust claims must be litigated on a separate track from

the type of state law contract- and tort-based claims brought by BGR client Mr. Days. MDL

Docket, Dkt. No. 144, 3–5. While The Joseph Saveri Law Firm lost the transfer motion, resulting

in the MDL being sent to the Southern District of Florida as opposed to the Northern District of

California, BGR’s argument that the antitrust claims and state law contract- and tort-based

at *1 (M.D. Fla. Oct. 7, 2015); see also, e.g., Bowers v. Sioux Honey Coop. Ass’n, No. 12-21034-
Civ-COOKE/Turnoff, 2012 WL 12865846, at *2 (S.D. Fla. Dec. 14, 2012).

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 5 of 9

claims must be litigated on separate tracks caught hold; now universally accepted by the

plaintiffs and defendants.

B. BGR has remarkable experience handling class actions and complex

litigation.

Again, prior to joining BGR, where he is now a name partner, Mr. Ellis served as Paul

Hastings LLP’s Global Chair of Complex Litigation and Arbitration, working at the firm for

more than 24 years. While Mr. Ellis has a thriving defense-side class action practice—

representing clients like L’Oreal and PG&E—he has proven himself just as effective on the other

side of the “v.”. For example, Mr. Ellis has the distinction of being the lead attorney that

obtained what is believed to be the largest judgment ever obtained by a Chinese firm in a U.S.

court—in excess of $2.8 billion. Mr. Ellis was also part of a trial team that obtained a $97.2

million jury verdict on behalf of their client in a lawsuit involving claims of unfair competition

and other related claims regarding the alleged failure to disclose material information in an

investment solicitation. See Ellis Decl., Exh. C.

Mr. Ellis is joined by several of his partners at BGR, bringing a wealth of experience to

this case, specifically Katherine F. Murray, Carl Alan Roth, and Matthew L. Venezia. Ms.

Murray practiced with Mr. Ellis at Paul Hastings LLP for nearly 20 years before the two joined

BGR, the duo having been counsel of record in at least 20 class actions, and brings significant

class action and complex commercial litigation experience to the team. Similarly, Mr. Roth spent

more than 20 years at Skadden, Arps, Slate, Meagher & Flom LLP prior to joining BGR, and has

extensive experience in the areas of class actions, securities litigation, and antitrust litigation.

Lastly, Mr. Venezia is a younger, millennial partner at BGR who has taken on much of the day-

to-day responsibility for managing this case, including drafting the complaint. Mr. Venezia has a

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 6 of 9

burgeoning record of success in complex litigation against many of the country’s top firms. Ellis

Decl., Exhs. D–F.

C. BGR is well-acquainted with the applicable law.

BGR’s knowledge of the law related to class action practice is indisputable, Mr. Ellis and

his partners having practiced in the class action area for decades at some of the largest law firms

in the country before joining BGR, and maintaining similar practices to the present. BGR’s

attorneys are primarily located in California and practice extensively within the state, and have

thus gained significant understanding and knowledge of the California substantive law that will

be at issue in this case. (Robinhood’s user agreement provides that “This Agreement and all

transactions made in My Account shall be governed by the laws of the State of California[.]”)

Indeed, BGR “literally [has] written the book on business litigation in California (an attorney

guide published by the Continuing Education of the Bar), which we update annually to reflect

legal developments in Unfair Competition, . . . Antitrust, . . . Business Torts, . . . and Unfair

Competition on the Internet.” Ellis Decl., Exh. A.

D. BGR is prepared to commit significant resources to this litigation.

BGR is an approximately 50-attorney litigation boutique firm, with significant resources,

that regularly represents clients in high-stakes contingency cases, and is capitalized to do so.

That BGR is heavily invested in this case is evidenced by its staffing of this matter, with at least

four partners committed to litigating this matter, supported by BGR’s highly qualified associates,

and additional attorneys available should they be required. Ellis Decl., ¶¶2–8.

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 7 of 9

E. BGR and its proposed leadership slate represent the diversity of the putative

classes.

It is important that lead counsel reflect the diversity of the putative classes they seek to

represent, as explained in the Duke Standards:

In selecting a selection mechanism and in turn appointing a
leadership team, courts should be mindful of the benefits of
diversity of all types. In particular, the strong repeat player
dynamic that has historically existed reduces fresh outlooks and
innovative ideas, and increases pressure to go along with the group
and conform, all of which may negatively impact the plaintiffs
whose cases are being pursued in the MDL.

Bolch Judicial Institute, Duke Law School, GUIDELINES AND BEST PRACTICES FOR LARGE AND

MASS-TORT MDLS (2d ed. 2018), p. 37. In another case against Robinhood in the Northern

District of California, Judge Donato echoed these sentiments:

The Court is concerned about a lack of diversity in the proposed
lead counsel. For example, all four of the proposed lead counsel
are men, which is also true for the proposed seven lawyers for the
“executive committee” and liaison counsel. In addition, the
proposed counsel appear to be lawyers and law firms that have
enjoyed a number of leadership appointments in other cases.
While this experience is likely to benefit the putative class, it
highlights the “repeat player” problem in class counsel
appointments that has burdened class action litigation and MDL
proceedings. Counsel with significant prior appointments are by
no means disqualified from consideration here, but leadership roles
should be made available to newer and less experienced lawyers,
and the attorneys running this litigation should reflect the diversity
of the proposed national class. Consequently, the Court denies the
interim counsel request. Plaintiffs may renew the request in a
manner that addresses the Court’s concerns.

In re Robinhood Outage Litig., No. 20-cv-01626-JD, 2020 WL 7330596, at *2 (N.D. Cal. July

14, 2020).

BGR made clear from day one in its discussions with other parties that diversity is an

important factor that must be considered in the selection of leadership, and is proud to present

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 8 of 9

proposed leadership that is not only imminently qualified to represent the putative classes, but

also diverse, including both minority and female counsel at the top-line leadership level. BGR is

committed to appointing an executive committee that similarly reflects the diversity of the

putative classes.

PROPOSED LEADERSHIP STRUCTURE

BGR, and the other members of its proposed leadership slate, propose that the Court

appoint three co-leads, Mr. Ellis of BGR, Ms. Salas of the Ferraro Law Firm, and Mr. Schirripa

of Hach Rose Schirripa & Cheverie, LLP. Mr. Ellis and Ms. Salas would preside over the state

law contract- and tort-based claims, whereas Mr. Schirripa would preside over the antitrust

claims. This leadership group would be supported by an executive committee consisting of 10–

12 members, to be selected by the co-lead counsel after their appointment.3

BGR is committed to appointing a diverse executive committee, consistent with the

diversity it sought at the lead counsel level. While BGR believes the executive committee should

be finalized after the Court appoints leads, the following counsel has BGR’s strong support for

such roles:

3
BGR understands that Joseph Saveri from The Joseph Saveri Law Firm will apply for the lead
counsel role presiding over the antitrust claims. While BGR proposes an alternative in Mr.
Schirripa, it is not opposed to Mr. Saveri’s candidacy, and BGR does not seek any role in
prosecuting the antitrust claims, having brought no such complaint. BGR understands that Mr.
Schirripa is not opposed to a leadership structure that would include a significant role for Mr.
Saveri, even being willing to serve in a co-chair type of position with Mr. Saveri should it best
serve the interests of the class.

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Case 1:21-md-02989-CMA Document 243-2 Entered on FLSD Docket 04/26/2021 Page 9 of 9

Maurice Pessah Kristi Stahnke McGregor
Pessah Law Group Evangelista Worley LLC
661 N Harper Ave, Suite 208 West 500 Sugar Mill Road, Bldg. A, Suite 245
Hollywood, CA 90048 Atlanta, GA 30350

Matthew L. Venezia Sean Burstyn
Browne George Ross O’Brien Annaguey & Burstyn Law Firm PLLC
Ellis LLP 355 Lexington Avenue, Floor 8
2121 Avenue of the Stars, Suite 2800 New York, NY 10017
Los Angeles, California 90067

CONCLUSION

For the reasons set forth above, BGR respectfully requests that the Court appoint Mr.

Ellis as co-lead counsel, to be joined by Ms. Salas and Mr. Schirripa.

Dated: April 26, 2021

/s/ Dennis. S. Ellis
DENNIS S. ELLIS
KATHERINE F. MURRAY
CARL ALAN ROTH
MATTHEW L. VENEZIA
BROWN GEORGE ROSS
O’BRIEN ANNAGUEY & ELLIS LLP
2121 Avenue of the Stars, Suite 2800
Los Angeles, California 90067
Telephone: (310) 274-7100
Facsimile: (310) 275-5697

Attorneys for Plaintiff Robert Days

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