D. The Auditor Defendants
As a result of the issues relating to the initial time period, in-and-out traders
and the lack of a demonstrably efficient market after April 8, 2011, the Court finds
that the a class may be certified only as follows:
All purchasers ofPuda common stock and call options on Puda common stock and sellers of put options on Puda common stock during the period March 31, 2010 through April 8, 2011, both dates inclusive (the "Class Period"). In-andout purchasers are excluded from the class, along with defendants, other officers and directors of Puda Coal, members of their immediate families and their heirs, and successors or assigns of any of the foregoing.
E. The Defaulted Defendants
There are two defendants who have been served but are in default. No judgment of default has yet issued. The liability phase of this case is still ongoing as a matter of law as to them. The Court therefore considers certification of a separate class for these defendants.
The Court cannot ignore its findings by a preponderance of the evidence as set forth above, even for defendants in default. The Court is required to conduct a
vigorous inquiry under Rule 23 before certifying a claim. See Wal-Mart, 131 S. Ct.
at 2551. The lack of demonstrably efficient market after April 8, 2011 thus
similarly limits the certifiable class as to the defaulted defendants. However, in-
and-out purchasers would similarly have unique defenses defeating
typicality/predominance. The Court certifies a class of plaintiffs as to the defaulted
defendants as follows:
All purchasers of Puda common stock and call options on Puda common stock and sellers of put options on Puda common stock during the period November 13, 2009 through April 8, 2011, both dates inclusive (the "Class Period"). Inand-out purchasers are excluded from the class, along with defendants, other officers and directors of Puda Coal, members of their immediate families and their heirs, and successors or assigns of any of the foregoing.
CONCLUSION
For the reasons set forth above, the Underwriter defendants' motion for summary judgment is GRANTED; the Outside Director defendants' motion fm summary judgment is GRANTED; the Auditor defendants' motions for summary judgment are GRANTED; Trellus's motion to intervene is DENIED; plaintiffs' motion for class certification and appointment of class representatives and class counsel is GRANTED as modified; and plaintiffs' motion for leave to amend is DENIED.
42 Case 1:11-cv-02598-KBF Document 263 Filed 10/01/13 Page 42 of 43