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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-2989-MDL-ALTONAGA/Torres
MOTION AND MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF
PLAINTIFF MICHAEL OBERLIN FOR A LEADERSHIP POSITION IN
CONNECTION WITH THE CLAIMS AGAINST TD AMERITRADE AND TO
APPROVE HIS SELECTION OF COUNSEL
SAFIRSTEIN METCALF LLP
Peter Safirstein
Elizabeth S. Metcalf
1345Avenue of the Americas
2nd Floor
New York, NY 10105
Tel: (212) 201-5845
psafirstein@safirsteinmetcalf.com
emetcalf@safirsteinmetcalf.com
Pro Hac Vice Admission requested
KANTROWITZ, GOLDHAMER
& GRAIFMAN, P.C.
Gary S. Graifman
Melissa R. Emert
135 Chestnut Ridge Road
Montvale, NJ 07645
Tel: (201) 391-7000
ggraifman@kgglaw.com
memert@kgglaw.com
Pro Hac Vice Admission requested
Attorneys for Plaintiff
Michael Oberlin
IN RE: JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 1 of 10
MOTION
PLEASE TAKE NOTICE that pursuant to the Court’s Order dated April 19, 2021, Plaintiff
Michael Oberlin will move, before the Honorable Cecilia M. Altonaga, United States District
Judge for the United States District Court, Southern District of Florida, at Wilkie D. Ferguson, Jr.
United States Courthouse, 400 North Miami Avenue Room 12-2, Miami, Florida 33128, on a date
and at a time designated by the Court, for an Order appointing Plaintiff to a leadership position in
the present action pending against TD Ameritrade, Inc. and appointing their counsel, Safirstein
Metcalf LLP and Kantrowitz Goldhamer & Graifman, P.C. Counsel in a leadership role in the present
matter. This Motion is supported by the accompanying Memorandum of Law in Support of the
Motion of Plaintiff Michael Oberlin and accompanying exhibits.
MEMORANDUM OF LAW
I.
INTRODUCTION and BACKGROUND
Plaintiff Michael Oberlin hereby moves for appointment to a leadership position in the
present action pending against TD Ameritrade, Inc. (“TD”). TD is alleged to have prohibited its
clients from selling multiple publicly traded stocks, including but not limited to GameStop
(“GME”) and AMC Entertainment (“AMC”). Plaintiff has today filed a complaint alleging
breach of contract and breach of the implied covenant of good faith and fair dealing.
Because Mr. Oberlin put in an order for the sale of 50,000 shares that was not properly
executed by TD, Mr. Oberlin has either the largest, or one of the largest, financial losses of any
named plaintiff in this litigation against TD.
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 2 of 10
II.
ARGUMENT
A. Plaintiff And His Counsel Should Be Appointed To Leadership Positions
Although Plaintiff’s claims are not brought pursuant to the PSLRA, the PSLRA
provides valuable guidance regarding the appointment of a lead plaintiff and counsel
in cases of this type. The PSLRA “requires the court to appoint a ‘lead plaintiff’ in
private securities class actions who is ‘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.” In re Bank of Am. Corp. Sec. Derivative & ERISA
Litig., 258 F.R.D. 260, 268 (S.D.N.Y. 2009).
Here, Plaintiff has filed a complaint, is a resident of the State of Florida (the
home state for this MDL litigation), and, by virtue of the failure of TD to properly
execute Plaintiff’s sell order of 50,000 shares, has either the largest or one of the largest
financial interests in the outcome of this litigation. We note that under the PSLRA,
“[t]he most important factor in determining the lead plaintiff is the amount of financial
interest claimed.” Newman v. Eagle Bldg. Techs., 209 F.R.D. 499, 502 (S.D. Fla.
2002).
Moreover, Plaintiff is able to make a prima facie showing that his claims satisfy
the requirements of Fed. R. Civ. Proc. Rule 23 as to commonality, typicality and
adequacy.
Here, the proposed counsel for leadership positions have substantial experience
handling class actions and other complex litigation. Both Safirstein Metcalf LLP and
Kantrowitz Goldhamer & Graifman, P.C. have many years of experience litigating all
aspects of complex litigation throughout the United States. The cases they have litigation
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 3 of 10
as lead or co-lead counsel include both securities fraud litigation and consumer class
action litigation.
Safirstein Metcalf LLP is headed by Peter Safirstein, a former Assistant United
States Attorney in the Southern District of Florida. Mr. Safirstein has specialized in the
investigation and prosecution of white collar fraud for more than 35 years. Prior to his
appointed in the Southern District of Florida, Mr. Safirstein served as a Special Assistant
United States Attorney in the Southern District of New York (Securities and
Commodities Fraud Division) and as an attorney in the Division of Enforcement at the
United States Securities and Exchange Commission. Mr. Safirstein has tried federal
cases to verdict both as part of a team and individually.
Mr. Safirstein and his partner, Elizabeth Metcalf, have years of experience in the
class action bar investigating and prosecuting class action matters as set forth in the
accompanying firm resume annexed hereto as Exhibit A.
Gary S. Graifman is a senior partner with KGG. KGG is a leading national class
action firm in the area of consumer class action litigation and under Mr. Graifman’s direction,
the firm has successfully litigated numerous class matters in this Court and in other courts
throughout the nation. See KGG Resume attached hereto as Ex. B
For example, in In re Home Depot Consumer Data Security Breach Litig., 1:14-MD-
02583-TWT (N.D. Ga.), Mr. Graifman and KGG served on the five-member Plaintiffs’
Steering Committee. The In re Home Depot matter involved one of the earliest massive data
breach consumer class actions and affected approximately 50 million consumers. It was
settled on a nationwide basis in 2016, and the settlement was valued at approximately $27
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 4 of 10
million.
In addition, Mr. Graifman and KGG were actively involved in litigating the massive
data breach class action, In re Premera Blue Cross Customer Data Security Breach Litig.
3:15-md-2633 (D. Ore). In In re Premera, KGG’s client was the sole named plaintiff and
representative for the California state subclass. The California subclass asserted a claim
under the California Confidential Medical Information Act, Cal. Civ. Code §§ 56, et seq.,
which was sustained by the Court and resulted in California residents who had their Personal
Information breached, receiving additional compensation in the settlement over and above
that which was available to other class members of the nationwide settlement, based solely
on that claim.
Mr. Graifman was also Co-Lead Counsel in the action, Coffeng, et al. v. Volkswagen
Group of America, et al., 3:17-cvb—01825-JD (N.D. Cal.) which involved defective water
pumps in certain Volkswagen and Audi vehicles and involved a nationwide class of owners
and lessees of approximately 873,779 class vehicles. Final Approval was granted to the
settlement on May 14, 2020 in the Northern District of California and was valued at
approximately $22 million.
Mr. Graifman and the firm were also Co-Lead Class Counsel in the related actions,
Chiarelli, et al. v. Nissan, N.A. 14-CV-4327 (NGG) (E.D.N.Y.) and Duncan, et al. v. Nissan
N.A., No. 1:16-CV-12120-DJC (D. Mass.), two companion cases involving multi-state
claims concerning defective timing chains on various Nissan model vehicles. Final Approval
of the settlement was granted on August 25, 2020 before Judge Denise Casper in the U.S.
District Court for the District of Massachusetts. The settlement was valued at $8,650,000.
Mr. Graifman was also co-lead class counsel in In re Volkswagen Timing Chain
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 5 of 10
Product Liability Litig., 16-cv-2765-JLL-JAD (D.N.J.), settled on a nationwide basis in the
District of New Jersey, involving approximately 477,000 class vehicles. Final approval was
granted to the settlement on December 14, 2018. The settlement provided one hundred
percent reimbursement for timing chain repairs to class members and was valued at
approximately $50 million (inclusive of warranty extension repairs).
Mr. Graifman was also a member of the Plaintiffs’ Steering Committee in the Multi-
District Litigation, In re Apple Inc. Device Performance Litig., 5:18-md-02827 (N.D. Cal.
2018), recently settled in the Northern District of California.
Mr. Graifman was also Co-Lead Class Counsel in the matter Gelis, et al. v.
Bayerische Motoren Werke Aktiengesellshaft, et al., pending in the U.S. District Court of the
District of New Jersey, Civ. Action No. 17-cv-7386-WHW-CLW, involving defective timing
chain assemblies in certain model BMW vehicles, which was granted final approval on
February 16, 2021.
Several other consumer class action cases in which Mr. Graifman has served as lead
counsel or co-lead counsel have resulted in positive results for plaintiffs’ classes, including:
Seifi, et al. v. Mercedes-Benz USA, LLC, No: 5:16-cv-03370-EJD, 2014 WL
8370026 (N.D. Cal. Dec. 17, 2014) (KGG was co-lead counsel, and the
matter settled on a nationwide basis at the class certification stage. Plaintiffs
sought compensation for reimbursement for repairs to various Mercedes
model vehicles due to a balance shaft defect. The action settled on a
nationwide basis in 2015, valued at approximately $25 million);
In re Nissan Radiator Transmission Cooler Litig., No. 10-cv-07493 (VB),
2013 WL 4080946 (S.D.N.Y. May 30, 2013) (referred to as “Nissan
Radiator Transmission Cooler Litig.”) (KGG was co-lead counsel and the
matter settled on a nationwide basis at the class certification stage. The
nationwide settlement, approved in May 2013, involved approximately
300,00 class vehicles and was valued at approximately $17 million);
Sheris v. Nissan North Am., Inc., No. 07-cv-2516 (WHW), 2008 WL
2354908 (D.N.J. June 3, 2008) (sustaining breach of warranty and NJCFA
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claims. KGG was co-lead counsel and matter subsequently settled on behalf
of class); and
Heverly v. Symantec Corp., No. 1-05-cv-053711 (Cal. Super. Ct., Santa
Clara County) (settled on a nationwide basis against major provider of
internet security software).
Melissa R. Emert is a partner at KGG. She has been representing aggrieved
consumers and investors for more than 30 years with KGG and with her previous firm. See
KGG Resume attached hereto as Ex. B. Ms. Emert’s practice specializes in consumer class
actions with an emphasis on product defect and data breach cases. She has litigated consumer
cases throughout the United States and holds prominent positions in many large MDLs and
non-MDL consumer class actions. As an endorsement of her expertise, substantial
experience, and successful results, Ms. Emert was recently named as one of two women
attorneys in the country who received the highest number of appointments to leadership
structures in nationwide MDLs by the Judges overseeing those MDLs.1
Some of Ms. Emert’s appointments and involvement in consumer class actions cases
include:
Court-appointed Co-Lead Counsel in Carder v. Graco Children’s Products,
Inc., 2:20-cv-00137-LMM (N.D. Ga. 2021) (alleging state consumer
protection and common law claims on behalf of consumers resulting from
defendant’s defective and allegedly unsafe children’s car seat products);
Court-appointed Co-Lead Counsel in In re: Daily Fantasy Sports Litig., 1:16-
md-02677-GAO (D. Mass 2016) (alleging state consumer protection and
common law claims on behalf of consumers participating in defendants’
online fantasy sports websites);
Court-appointed member of Plaintiffs’ Executive Committee in In re: Hill’s
Pet Nutrition, Inc. Dog Food Products Liab. Litig., No. 19-md-2887 (D. Kan.
2019) (alleging state consumer protection and common law claims on behalf
1 See Amanda Bronstad, There Are New Faces Leading MDLs. And They Aren’t All Men.,
LAW.COM (July 6, 2020, 10:53 p.m.), https://www.law.com/2020/07/06/there-are-new-
faces-leading-mdls-and-they-arent-all-men/.
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 7 of 10
of consumers who purchased defective dog food that contained toxic levels
of Vitamin D);
Discovery Committee in In re: Rock ‘N Play Sleeper Marketing, Sales
Practices, & Prods. Liab. Litig., 1:19-md-2903 (W.D.N.Y. 2019) (alleging
state consumer protection and common law claims on behalf of consumers
who purchased the defective and inherently unsafe Fisher-Price Rock ‘n Play
Sleeper for infants);
Court-appointed member of Plaintiffs’ Steering Committee in In re: Intel
Corp. CPU Mktg. & Prods. Liab. Litig., 3:18-md-02828 (D. Or. 2018)
(alleging state consumer protection and common law claims on behalf of
purchasers of defective Intel processors);
Court-appointed member of Plaintiffs’ Executive Committee in In re: Apple
Inc. Device Performance Litig., 5:18-md-02827 (N.D. Cal. 2018) (alleging
state consumer protection and common law claims on behalf of iPhone users
subject to intentional slowdown);
Court-appointed member of Plaintiffs’ Steering Committee in In re: German
Auto. Mfrs. Antitrust Litig., 3:17-md-02796 (N.D. Cal. 2017) (alleging
anticompetitive conduct in the market for German-made automobiles);
Court-appointed member of Plaintiffs’ Steering Committee in In Re: Sonic
Corp. Customer Data Security Breach Litig., 1:17-md-02807 (N.D. Ohio
2017) (claims on behalf of persons affected by Sonic’s data breach resulted in
a class-wide settlement);
Court-appointed Interim Class Counsel in In re: Google Location History
Litig, 5:18-cv-05062-EJD (N.D. Cal. 2019) (privacy breach action alleging
Google tracked millions of mobile device users’ location contrary to false
representations);
Co-Chair of Plaintiffs’ Vetting Committee in In re Wawa, Inc. Data Breach
Litig., No. 19-6019 (E.D. Pa. 2019) (claims on behalf of persons affected by
Wawa’s data breach and had their personal information compromised); and
Class Representative Communications and Client Vetting Committee in
Echavarria, et al. v. Facebook, Inc., Case No. C 18-05982 (N.D. Cal. 2018)
(claims on behalf of persons that affected by Facebook’s “View As” data
breach).
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 8 of 10
Both Safirstein Metcalf LLP and Kantrowitz Goldhamer & Graifman, P.C. have
the resources necessary to devote to the prosecution of this litigation.
Given proposed Lead Plaintiff and Counsels’ qualifications, this Court should
approve proposed the requested appointments.
III.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court grant
his motion to appoint him and his counsel to leadership positions with regard to the
claims against Defendant TD Ameritrade, Inc.
Dated: April 26, 2021
Respectfully submitted,
SAFIRSTEIN METCALF LLP
By: /s/Peter Safirstein
Peter Safirstein
Elizabeth S. Metcalf
1345Avenue of the Americas
2nd Floor
New York, NY 10105
Tel: (212) 201-5845
psafirstein@safirsteinmetcalf.com
emetcalf@safirsteinmetcalf.com
Pro Hac Vice Admission requested
KANTROWITZ, GOLDHAMER
& GRAIFMAN, P.C.
Gary S. Graifman
Melissa R. Emert
135 Chestnut Ridge Road
Montvale, NJ 07645
Tel: (201) 391-7000
ggraifman@kgglaw.com
memert@kgglaw.com
Case 1:21-md-02989-CMA Document 243-5 Entered on FLSD Docket 04/26/2021 Page 9 of 10
Pro Hac Vice Admission requested
Attorneys for Plaintiff
Michael Oberlin
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