IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FAN ZHANG, Individually and on Behalf of All 

Others Similarly Situated, 

 

Plaintiff, 

 vs. 

GROUPON, INC., ANDREW D. MASON, 

JASON E. CHILD, JOSEPH M. DEL PRETO, 

ERIC P. LEFKOFSKY, THEODORE J. 

LEONSIS, PETER J. BARRIS, KEVIN J. 

EFRUSY, MELLODY HOBSON, BRADLEY A. 

KEYWELL, HOWARD SCHULTZ, MORGAN 

STANLEY & CO. LLC, GOLDMAN, SACHS & 

CO., CREDIT SUISSE SECURITIES (USA) 

LLC, ALLEN & COMPANY LLC, MERRILL 

LYNCH, PIERCE, FENNER & SMITH 

INCORPORATED, BARCLAYS CAPITAL INC., 

CITIGROUP GLOBAL MARKETS INC., 

DEUTSCHE BANK SECURITIES INC., J.P. 

MORGAN SECURITIES LLC, WELLS FARGO 

SECURITIES, LLC, WILLIAM BLAIR & 

COMPANY L.L.C., LOOP CAPITAL 

MARKETS, INC., RBC CAPITAL MARKETS 

LLC and THE WILLIAMS CAPITAL GROUP, 

L.P.,

Defendants.

 

Case No. 12-cv-02450

Honorable Charles R. Norgle, Sr. 

[Caption continued]

MEMORANDUM OF LAW IN SUPPORT OF THE 

MOTION OF GUS SEKAS FOR CONSOLIDATION, APPOINTMENT 

AS LEAD PLAINTIFF AND APPROVAL OF SELECTION OF COUNSEL

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KATHLEEN ROSELLI, Individually And On 

Behalf of All Others Similarly Situated, 

 

Plaintiff, 

 vs. 

GROUPON, INC., ERIC P. LEFKOFSKY, 

ANDREW D. MASON, JASON CHILD, KEVIN 

EFRUSY, THEODORE J. LEONSIS, HOWARD 

SCHULTZ, JOSEPH M. DEL PRETO, MORGAN 

STANLEY & CO. LLC, GOLDMAN, SACHS & 

CO., CREDIT SUISSE SECURITIES (USA) 

LLC, 

 

Defendants. 

 

Case No. 12-cv-02460

Honorable Charles R. Norgle, Sr. 

DENNIS EINSPAHR, Individually and on Behalf 

of All Others Similarly Situated, 

 

Plaintiff, 

 vs. 

GROUPON, INC., JASON E. CHILD, JOSEPH 

M. DEL PRETO, ANDREW D. MASON, ERIC 

P. LEFKOFSKY, PETER J. BARRIS, KEVIN J. 

EFRUSY, MELLODY HOBSON, BRADLEY A. 

KEYWELL, THEODORE J. LEONSIS, 

HOWARD SCHULTZ, MORGAN STANLEY & 

CO. LLC, GOLDMAN, SACHS & CO., CREDIT 

SUISSE SECURITIES (USA) LLC, ALLEN & 

COMPANY LLC, MERRILL LYNCH, PIERCE, 

FENNER & SMITH INCORPORATED, 

BARCLAYS CAPITAL INC., CITIGROUP 

GLOBAL MARKETS INC., DEUTSCHE BANK 

SECURITIES INC., J.P. MORGAN SECURITIES 

LLC, WELLS FARGO SECURITIES, LLC, 

WILLIAM BLAIR & COMPANY LLC., LOOP 

CAPITAL MARKETS, INC., RBC CAPITAL 

MARKETS LLC and THE WILLIAMS CAPITAL 

GROUP, L.P.,

Defendants.

Case No. 12-cv-02547

Honorable Charles R. Norgle, Sr. 

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JOHN PEDROW, Individually and on Behalf of 

All Others Similarly Situated, 

 

Plaintiff, 

 vs. 

GROUPON, INC., ANDREW D. MASON, 

JASON E. CHILD, JOSEPH M. DEL PRETO, 

ERIC P. LEFKOFSKY, THEODORE J. 

LEONSIS, PETER J. NARRIS, KEVIN J. 

EFRUSY, MELLODY HOBSON, BRADLEY A. 

KEYWELL, HOWARD SCHULTZ, MORGAN 

STANLEY & CO. LLC, GOLDMAN, SACHS & 

CO., CREDIT SUISSE SECURITIES (USA) 

LLC, ALLEN & COMPANY LLC, MERRILL 

LYNCH, PIERCE, FENNER & SMITH 

INCORPORATED, BARCLAYS CAPITAL INC., 

CITIGROUP GLOBAL MARKETS INC., 

DEUTSCHE BANK SECURITIES INC., J.P. 

MORGAN SECURITIES LLC, WELLS FARGO 

SECURITIES, LLC, WILLIAM BLAIR & 

COMPANY L.L.C., LOOP CAPITAL 

MARKETS, INC., RBC CAPITAL MARKETS

LLC and THE WILLIAMS CAPITAL GROUP, 

L.P.,

Defendants.

Case No. 12-cv-02791

Honorable Charles R. Norgle, Sr. 

JOHN H. COTTRELL, Individually and on Behalf 

of All Others Similarly Situated, 

 

Plaintiff, 

 vs. 

GROUPON, INC., ANDREW D. MASON, 

JASON E. CHILD, JOSEPH M. DEL PRETO, 

ERIC P. LEFKOFSKY, THEODORE J. 

LEONSIS, PETER J. NARRIS, KEVIN J. 

EFRUSY, MELLODY HOBSON, BRADLEY A. 

KEYWELL, HOWARD SCHULTZ, MORGAN 

STANLEY & CO. LLC, GOLDMAN, SACHS & 

CO., CREDIT SUISSE SECURITIES (USA) 

Case No. 12-cv-03129

Honorable Charles R. Norgle, Sr. 

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LLC, ALLEN & COMPANY LLC, MERRILL 

LYNCH, PIERCE, FENNER & SMITH 

INCORPORATED, BARCLAYS CAPITAL INC., 

CITIGROUP GLOBAL MARKETS INC., 

DEUTSCHE BANK SECURITIES INC., J.P. 

MORGAN SECURITIES LLC, WELLS FARGO 

SECURITIES, LLC, WILLIAM BLAIR & 

COMPANY L.L.C., LOOP CAPITAL 

MARKETS, INC., RBC CAPITAL MARKETS 

LLC and THE WILLIAMS CAPITAL GROUP, 

L.P.,

Defendants.

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1

Lead plaintiff movant Gus Sekas (“Mr. Sekas”) respectfully submits this memorandum of 

law in support of his Motion for: (1) consolidation of related actions; (2) appointment as Lead 

Plaintiff pursuant to the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), 15 

U.S.C. § 78u-4(a)(3)(B) and 77z-1(a)(3)(B);

1

(3) approval of his selection of Kessler Topaz 

Meltzer & Check, LLP (“Kessler Topaz”) as Lead Counsel; and (4) approval of his selection of 

Lasky & Rifkind, Ltd. (“Lasky & Rifkind”) as Liaison Counsel.

I. PRELIMINARY STATEMENT

Currently pending in this District are at least five class actions (the “Related Actions”)

brought on behalf of all persons who purchased Groupon, Inc. (“Groupon” or the “Company”) 

common stock between November 4, 2011 and March 30, 2012 (the “Class Period”), including 

those persons or entities who acquired securities pursuant or traceable to the Company‟s 

November 4, 2011 initial public offering (“IPO”). The Related Actions allege violations of 

Sections 10(b) and 20(a) of the Exchange Act, Rule 10b-5 promulgated thereunder (17 C.F.R. § 

240.10b-5), and Sections 11, 12(a)(2) and 15 of the Securities Act against certain of Groupon‟s 

officers, directors, and underwriters of the IPO (“Defendants”).2 The first action against the 

Defendants was filed on April 3, 2012 by Fan Zhang. See Declaration of Norman Rifkind in 

Support of Gus Sekas‟ Motion for Consolidation, Appointment as Lead Plaintiff and Approval of 

 

1

For the purposes of this memorandum of law, the PSLRA provisions contained in the 

Securities Exchange Act of 1934 (the “Exchange Act”) are cited and citations to the Securities 

Act of 1933 (the “Securities Act”) are omitted, as they are redundant. 

2

Zhang v. Groupon, Inc., et al., Case No. 12-cv-02450 (N.D. Ill. filed April 3, 2012), 

Einspahr v. Groupon, Inc., et al., Case No. 12-cv-02547 (N.D. Ill. filed April 6, 2012) and 

Pedrow v. Groupon, Inc., et al., Case No. 12-cv-02791 (N.D. Ill. filed April 16, 2012) assert 

claims under Sections 10(b) and 20(a) of the Exchange Act and Sections 11 and 15 of the 

Securities Act. Roselli v. Groupon, Inc., et al., Case No. 12-cv-02460 (N.D. Ill. filed April 3, 

2012) and Cottrell v. Groupon, Inc., et al., Case No. 12-cv-03129 (N.D. Ill. filed April 27, 2012) 

assert claims under Sections 10(b) and 20(a) of the Exchange Act and Sections 11, 12(a)(2) and 

15 of the Securities Act. 

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Selection of Counsel (“Rifkind Decl.”), Ex. A. The Related Actions involve common issues of 

law and fact and should be should be consolidated. See Fed. R. Civ. P. 42(a) (“Rule 42(a)”).

After the Court‟s ruling on consolidation, Mr. Sekas should be selected as lead plaintiff 

because, to the best of his knowledge, he has the largest financial interest in the relief sought by 

the class. See Rifkind Decl., Exs. B-C; 15 U.S.C. §78u-4(a)(3)(B)(iii). In addition, Mr. Sekas

satisfies the requirements of Fed. R. Civ. P. 23 (“Rule 23”) because his claims are typical and he 

will fairly and adequately represent the class‟s interests. See Takara Trust v. Molex Inc., 229 

F.R.D. 577, 580 (N.D. Ill. 2005) (“Only two of the Rule 23 requirements pertain to 

representative plaintiffs: typicality and adequacy.”). Further, in accordance with the PSLRA, 

Mr. Sekas‟s selection of lead counsel should be approved. See §III.C, infra; 15 U.S.C.§ 78u4(a)(3)(B)(v).

II. SUMMARY OF THE ACTION

Groupon operates an e-commerce marketplace that connects merchants to consumers by 

offering goods and services at a discount. The Company operates by sending daily emails to its 

subscribers regarding discounted offers for goods and services that are targeted by location and 

personal preferences. Consumers can also access deals offered by Groupon directly through the 

Company‟s Website and mobile application. Groupon was founded in 2008 and is headquartered 

in Chicago, Illinois. The Company‟s common shares trade on the NASDAQ under the ticker 

“GRPN.” 

The Class Period begins on November 4, 2011 to coincide with Groupon‟s IPO. On this 

date, the Company offered 35 million shares of Groupon common stock to the public at a price 

of $20 per share. The Company filed a Form S-1/A Registration Statement and Prospectus (the 

“Offering Documents”) with the SEC on November 3, 2011 in connection with the IPO. In the 

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3

Offering Documents, the Company made the following statements, among others, regarding its

financial condition, its growth prospects, and its strong cash position: 

 “The unaudited information was prepared on a basis consistent with that used to 

prepare our audited financial statements and includes all adjustments, consisting 

of normal and recurring items, that we consider necessary for a fair presentation 

of the unaudited period.”

 “[O]ur scale creates competitive advantages that even the largest technology 

companies are having trouble penetrating. And with the launch of NOW, I 

suspect our competition will have an even harder time in light of the natural 

barriers to entry that are needed to build a real-time local deals marketplace.” 

 “We‟ve never been stronger.” 

 “In other words, we‟re doing the opposite of running out of money.” 

On February 8, 2012, Groupon issued a press release announcing its fourth quarter and 

full year 2011 results. The Company reported a net loss of ($42.7 million), or ($0.08) diluted 

EPS, and revenue of $506.5 million for the fourth quarter of 2011. Additionally, the Company 

reported a net loss of ($350.8 million), or ($0.97) diluted EPS, and revenue for the 2011 full year 

of $1.6 billion. Further, the Company provided first quarter 2012 guidance, with income from 

operations expected to be between $15 million and $35 million and revenue expected to be 

between $510 million and $550 million. 

Then, on March 30, 2012, after the market close, Groupon issued a press release 

announcing a revision to its fourth quarter and full year 2011 results (released on February 8, 

2012). The Company reported a reduction in its fourth quarter 2011 revenue of $14.3 million 

after initially reporting sales of $506.5 million. This resulted in an increase to Groupon‟s fourth 

quarter 2011 operating expenses that reduced operating income by $30 million, net income by 

$22.6 million, and EPS by $0.04. Groupon attributed the revisions to a shift in the Company‟s 

fourth quarter deal mix and higher price point offers, which resulted in higher refund rates. The 

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Company also admitted that its internal controls were ineffective. On this news, Groupon‟s 

stock dropped $3.10 per share to close at $15.28 per share on April 2, 2012, a decline of 17% on 

volume of 10 million shares.

III. ARGUMENT

A. The Related Actions Should Be Consolidated

The PSLRA provides that “[i]f more than one action on behalf of a class asserting 

substantially the same claim or claims arising under this title [] has been filed,” courts shall not 

appoint a lead plaintiff until “after the decision on the motion to consolidate is rendered.” 15 

U.S.C. §78u-4(a)(3)(B)(ii). There are at least five related securities class actions pending in this 

District on behalf of investors who purchased Groupon common stock in or traceable to the IPO 

and/or during the Class Period:

Abbreviated Case Name Case Number Date Filed

Zhang v. Groupon, Inc., et al., 1:12-cv-02450 April 3, 2012

Roselli v. Groupon, Inc., et al., 1:12-cv-02460 April 3, 2012

Einspahr v. Groupon, Inc., et al., 1:12-cv-02547 April 6, 2012

Pedrow v. Groupon, Inc., et al., 1:12-cv-02791 April 16, 2012

Cottrell v. Groupon, Inc., et al., 1:12-cv-03129 April 27, 2012

Here, the Related Actions present nearly identical factual and legal issues arising out of 

the same alleged course of misconduct and involve the purchase of Groupon common stock

based on material misstatements and omissions during the Class Period. All of the actions assert 

similar claims, against nearly all of the same defendants over an identical class period. 

Accordingly, consolidation of the Related Actions under Rule 42(a) is appropriate. See Topaz 

Realty v. Northfield Labs., Inc., 2006 U.S. Dist. LEXIS 77613, at *6-7 (N.D. Ill. June 19, 2006) 

(consolidation is appropriate where the actions involve common questions of law or fact). 

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B. The PSLRA’s Lead Plaintiff Provisions

The PSLRA establishes the procedure for the appointment of a lead plaintiff in “each 

private action arising under [the Exchange Act] that is brought as a plaintiff class action pursuant 

to the Federal Rules of Civil Procedure.” 15 U.S.C. §78u-4(a)(1). First, the plaintiff who files 

the initial action must publish a notice within twenty days, informing class members of their 

right to file a motion for appointment as lead plaintiff. See 15 U.S.C. §78u-4(a)(3)(A)(i). 

Second, within sixty days of the publication of notice, any person who is a member of the 

proposed class may apply to be appointed as lead plaintiff, whether or not they have previously 

filed a complaint in the action. See 15 U.S.C. §78u-4(a)(3)(A)(i)(II). Third, within ninety days 

after publication of notice, courts shall consider any motion made by a class member and shall 

appoint as lead plaintiff the member or members of the class that the court determines to be most 

capable of adequately representing the interests of class members. See 15 U.S.C. §78u4(a)(3)(B)(i). In determining the “most adequate plaintiff,” the PSLRA provides that:

[T]he court shall adopt a presumption that the most adequate plaintiff in 

any private action arising under this [Act] is the person or group of 

persons that –

(aa) has either filed the complaint or made a motion in response to a 

notice...;

(bb) in the determination of the court, has the largest financial interest 

in the relief sought by the class; and

(cc) otherwise satisfies the requirements of Rule 23. 

15 U.S.C. §78u-4(a)(3)(B)(iii)(I). 

Here, the relevant notice to investors advising them of their right to move for 

appointment as lead plaintiff was published in Business Wire on April 3, 2012. See Rifkind

Decl., Ex. A. The notice advised class members of the existence of the lawsuit and described the 

claims asserted therein. The notice also advised class members of their right to file a motion to 

be appointed as lead plaintiff within sixty days of the date of the notice. Based on the 

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publication of this notice, the time period in which class members may move to be appointed 

lead plaintiff in this case expires June 4, 2012. See 15 U.S.C. §78u-4(a)(3)(A)-(B). 

Pursuant to the PSLRA, and within the requisite time frame after publication of the 

required notice, Mr. Sekas timely moves this Court to be appointed lead plaintiff on behalf of all 

members of the class. In addition, Mr. Sekas has selected and retained counsel experienced in 

the prosecution of securities class actions to represent it and the class. See Rifkind Decl., Exs. 

D-E. Accordingly, Mr. Sekas satisfies the PSLRA‟s filing requirements and is entitled to have 

his application for appointment as lead plaintiff considered by the Court. 

C. Mr. Sekas Is the “Most Adequate Plaintiff”

1. Mr. Sekas Has the Largest Financial Interest in the Relief Sought by 

the Class

Pursuant to 15 U.S.C. §78u-4(a)(3)(B)(iii), the court shall appoint as lead plaintiff the 

movant who have the largest financial interest in the class action. Mr. Sekas suffered losses of 

$82,300 based on his Class Period purchases of Groupon stock due to Defendants‟ misconduct.3 

See Rifkind Decl., Exs. B-C. The loss is the same under either a first-in, first-out or last-in, firstout analysis. To the best of Mr. Sekas‟s knowledge, his financial interest in this matter is the 

largest of any competing lead plaintiff movant. Accordingly, Mr. Sekas should be appointed 

lead plaintiff. See 15 U.S.C. §78u-4(a)(3)(B)(iii). 

2. Mr. Sekas Satisfies Rule 23

In addition to possessing the largest financial interest in the outcome of the litigation, the 

lead plaintiff must also “otherwise satisf[y] the requirements of Rule 23 of the Federal Rules of 

 

3 Mr. Sekas‟ financial interest is calculated based on the current 90-day mean trading price 

of Groupon‟s stock as of June 4, 2012. See 15 U.S.C. §78u-4(e)(1) (“the award of damages to 

the plaintiff shall not exceed the difference between the purchase or sale price paid or received, 

as appropriate, by the plaintiff for the subject security and the mean trading price of that security 

during the 90-day period beginning on the date on which the information correcting the 

misstatement or omission that is the basis for the action is disseminated to the market.”).

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Civil Procedure.” 15 U.S.C. §78u-4(a)(3)(B)(iii)(I)(cc). Rule 23(a) provides that a party may 

serve as a class representative if the following four requirements are satisfied: “(1) the class is so 

numerous that joinder of all members is impracticable; (2) there are questions of law or fact 

common to the class; (3) the claims or defenses of the representative parties are typical of the 

claims or defenses of the class; and (4) the representative parties will fairly and adequately 

protect the interests of the class.” Although Rule 23 includes four requirements, at this stage of 

the litigation, only a preliminary showing of typicality and adequacy is required. See Takara 

Trust, 229 F.R.D. at 580 (“Only two of the Rule 23 requirements pertain to representative 

plaintiffs: typicality and adequacy.”).

a. Mr. Sekas’s Claims Are Typical of the Class’s Claims

Under Rule 23(a), claims are typical if they „“arise[] from the same event or course of 

conduct that gives rise to the claims of other class members and his or her claims are based on 

the same legal theory.‟” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (quoting De 

La Fuente v. Stokley-Van Camp Inc., 713 F.2d 225, 232 (7th Cir. 1983)). The claims of the lead 

plaintiff, however, need not be identical to the claims of the class to satisfy typicality. See De La 

Fuente, 713 F.2d at 232-33 (“The typicality requirement may be satisfied even if there are factual 

distinctions between the claims of the named plaintiffs and those of other class members.”). 

Here, Mr. Sekas is typical because, just like all other class members he purchased or 

otherwise acquired Groupon common stock during the Class Period based on materially false 

and misleading statements and/or omissions. See In re Motorola Sec. Litig., 2003 U.S. Dist. 

LEXIS 12651, at *11 (N.D. Ill. July 16, 2003). As such, Mr. Sekas‟s claims are typical of those 

of other class members because his claims and the claims of other class members arise out of the 

same course of events. See 7 Herbert B. Newberg, et al., Newberg on Class Actions §22.24 (4th 

ed. 2002) (“The majority of class action decisions support the view that when it is alleged that 

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8

the same unlawful conduct was directed at or affected both the named plaintiff and the class 

sought to be represented, the typicality requirement is met.”). 

b. Mr. Sekas Will Adequately Represent the Interests of the Class

The adequacy requirement is satisfied where the named representative (1) has retained 

competent counsel, (2) has a sufficient interest in the outcome of the case to ensure vigorous 

advocacy, and (3) does not have interests antagonistic to those of the class. See In re Motorola 

Sec. Litig., 2003 U.S. Dist. LEXIS 12651, at *11.

Here, Mr. Sekas satisfies each of these elements and he is therefore an adequate class 

representative. As evidenced by the injury suffered by Mr. Sekas from purchases of the 

Company‟s common stock based on Defendants‟ violations of federal securities laws, the 

interests of Ms. Sekas are clearly aligned with the interests of members of the class, and there is 

no evidence of any antagonism between his interests and those of the other members of the class. 

In addition, as shown below, Mr. Sekas‟s proposed Counsel are highly qualified, experienced, 

and able to conduct this complex litigation in a professional manner. Thus, Mr. Sekas satisfies 

the typicality and adequacy requirements of Rule 23.

D. The Court Should Approve Mr. Sekas’s Selection of Counsel

The party selected to serve as lead plaintiff “shall, subject to the approval of the court, 

select and retain counsel to represent the class.” 15 U.S.C. §78u-4(a)(3)(B)(v). Mr. Sekas has 

selected and retained Kessler Topaz to serve as lead counsel for the class. Kessler Topaz 

specializes in prosecuting complex class action litigation and is one of the preeminent law firms 

in its field. Kessler Topaz is actively engaged in complex litigation and has successfully 

prosecuted numerous securities fraud class actions on behalf of injured investors. Kessler Topaz 

is currently serving as lead or co-lead counsel in several high profile securities class actions, 

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9

including actions involving Lehman Brothers, Medtronic, Johnson & Johnson, Bank of America 

and UBS and has secured billions of dollars in recoveries for investors. See Rifkind Decl., Ex. 

D. 

Similarly, Lasky & Rifkind has regularly acted as counsel, for plaintiffs and defendants, 

in securities litigation in numerous federal and state courts, and in securities arbitrations. See

Rifkind Decl., Ex. E. As such, Kessler Topaz and Lasky & Rifkind have extensive experience in 

securities litigation and are well qualified to represent the class. 

IV. CONCLUSION

For the foregoing reasons Mr. Sekas respectfully requests that the Court: (1) consolidate 

the Related Actions; (2) appoint Mr. Sekas as Lead Plaintiff pursuant to the PSLRA; and (3) 

approve Mr. Sekas‟s selection of Kessler Topaz to serve as Lead Counsel for the class and Lasky 

& Rifkind to serve as Liaison Counsel for the class.

Dated: June 4, 2012 Respectfully submitted, 

s/ Norman Rifkind

LASKY & RIFKIND, LTD

Norman Rifkind

Amelia S. Newton

Heidi VonderHeide

351 W Hubbard Street, Suite 401

Chicago, IL 60654

Telephone: (312) 634-0057

Proposed Liaison Counsel

KESSLER TOPAZ 

MELTZER & CHECK, LLP

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Sean M. Handler 

Naumon A. Amjed 

Ryan T. Degnan 

280 King of Prussia Road

Radnor, PA 19087

Telephone: (610) 667-7706

Facsimile: (610) 667-7056

Attorneys for Gus Sekas and Proposed Lead 

Counsel

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CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2012, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to the e-mail 

addresses denoted on the attached Electronic Mail Notice List. 

I certify under penalty of perjury that the foregoing is true and correct. 

Executed on June 4, 2012.

/s/ Norman Rifkind

Norman Rifkind

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