FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ROBERTO COHEN, 

Petitioner,

v.

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF

CALIFORNIA,

Respondent,

No. 09-70378 LISA MILLER, NEW JERSEY

CARPENTERS PENSION AND ANNUITY D.C. No.  FUND, DOUGLAS DEPIES, PATRICK D. 08-CV-04260

JERMYN, ALEXANDER POLITZER, OPINION

HARMIK KAZANCHIAN, IBEW LOCAL

640/ARIZONA CHAPTER NECA

PENSION TRUST FUND, THE FRANKS

GROUP, CITY OF PONTIAC GENERAL

EMPLOYEES RETIREMENT SYSTEM,

NVIDIA CORP., JEN-HSUN HUANG

and MARVIN D. BURKETT.

Real Parties in Interest. 

On Petition for Writ of Mandamus to the

United States District Court for the

Northern District of California.

D.C. No. 08-CV-04260.

James Ware, District Judge, Presiding

Argued and Submitted

September 1, 2009—San Francisco, California

Filed November 5, 2009

14909
Before: Betty B. Fletcher and Andrew J. Kleinfeld, Circuit

Judges, and Kevin T. Duffy,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable Kevin T. Duffy, Senior United States District Judge for

the Southern District of New York, sitting by designation. 

14910 COHEN v. UNITED STATES DISTRICT COURT
COUNSEL

Michael F. Ram, Levy, Ram & Ollson LLP, San Francisco,

California and Kim E. Miller, Kahn Gauthier Swick, LLC,

New York, New York, for the petitioner.

14912 COHEN v. UNITED STATES DISTRICT COURT
Jonathan K. Levine and Aaron M. Sheanin, Girard Gibbs

LLP, San Francisco, California, and Ralph Stone and Thomas

G. Ciarlone, Jr., Shalov Stone Bonner & Rocco LLP, New

York, New York, for Real Parties in Interest Lisa Miller and

the Depies Group.

OPINION

B. FLETCHER, Circuit Judge:

Petitioner Roberto Cohen petitions for a writ of mandamus

vacating the district court’s December 23, 2008, order to the

extent that it appointed Girard Gibbs LLP as co-lead counsel

and requiring the district court to appoint Kahn Gauthier

Swick, LCC, as co-lead counsel. We grant the petition for a

writ of mandamus in part and order the district court to vacate

its order appointing Girard Gibbs LLP as co-lead counsel. 

FACTS AND PROCEDURAL BACKGROUND

This case presents the issue of whether the district court has

authority to select lead counsel under the Private Securities

Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u4.

The underlying litigation is a consolidated putative securities fraud class action brought by investors who purchased

NVIDIA Corporation securities between November 8, 2007

and July 2, 2008. In September of 2008, Lisa Miller filed the

first putative securities fraud class action against NVIDIA,

which the district court consolidated with two other actions.

The Complaint alleges, among other things, that NVIDIA

fraudulently concealed from investors the use of flawed materials and processes in producing certain products, and that the

stock price substantially declined following the disclosure of

these facts. 

COHEN v. UNITED STATES DISTRICT COURT 14913
Following consolidation, seven purported class members or

groups of class members filed motions to be appointed lead

plaintiff and for approval of their choice of lead counsel.

Among these were Roberto Cohen, who selected Kahn Gauthier Swick, LLC (“KGS”) as his choice for lead counsel;

New Jersey Carpenters Pension and Annuity Funds (“New

Jersey Carpenters”), which selected Milberg LLP as its choice

for lead counsel; and a group consisting of Douglas Depies,

Jerrold Engber, Geoffrey James, Chester Chow, and

Kumaraswamy Krishnamurthy (collectively the “Depies

Group”) which selected Girard Gibbs LLP (“Girard Gibbs”)

and Shalov Stone Bonner & Rocco LLP as their choice for

co-lead counsel. 

The district court, in an order dated December 23, 2008,

(“December Order”) appointed lead plaintiff and lead counsel.

The PSLRA creates a rebuttable presumption that the most

adequate plaintiff—whom the court must appoint as the lead

plaintiff—is the person or group that meets the following

three requirements: “(a) has either filed the complaint or made

a motion in response to the published notice; (b) in the determination of the court, has the largest financial interest in the

relief sought by the class; and (c) otherwise satisfies the

requirements of Rule 23 of the Federal Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). The PSLRA further

provides that the lead plaintiff “shall, subject to the approval

of the court, select and retain counsel to represent the class.”

Id. § 78u-4(a)(3)(B)(v). After applying two separate methods

to determine the plaintiff with the largest financial stake in the

litigation, the court appointed Cohen and New Jersey Carpenters as co-lead plaintiffs. The district court appointed Milberg

LLP and Girard Gibbs as co-lead counsel, finding “[u]pon

review of each firm’s resume, . . . [and] given each firm’s

experience with similar actions,” these firms were “the most

qualified counsel for this case.” 

On January 8, 2009, Cohen requested leave to file a motion

for reconsideration of the court’s December Order or, in the

14914 COHEN v. UNITED STATES DISTRICT COURT
alternative, application for an order certifying interlocutory

appeal pursuant to 28 U.S.C. § 1292(b). Cohen argued that the

district court’s appointment of Girard Gibbs, the Depies

Group’s choice for lead counsel, was contrary to the PSLRA

and In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002), because

it denied him his right, as lead plaintiff, to select counsel for

the class. The Depies Group also submitted a motion for leave

to file a motion for reconsideration and/or clarification of the

December Order in which they argued 1) the district court

should deny Cohen’s motion and 2) if the district court authorized Cohen’s motion for reconsideration it should authorize

the Depies Group to challenge the appointment of lead plaintiff. In an order dated January 23, 2009 (“January Order”), the

district court denied these motions. The district court found

that “In re Cavanaugh does not specify the terms on which a

court may refuse to approve a lead plaintiff’s selection of

counsel” and that “[u]nder the express language of the

PSLRA, the Court has the discretion not to appoint a lead

plaintiff’s choice of counsel.” 

Cohen filed a petition for writ of mandamus seeking to

vacate the December Order to the extent it appointed Girard

Gibbs as co-lead counsel and to compel the district court to

appoint KGS. The Real Parties in Interest Lisa Miller and the

Depies Group filed a response opposing the petition and arguing that if the petition is granted the proper remedy is to

remand to the district court with instructions to appoint the

Depies Group as lead plaintiff.

DISCUSSION

I. Cohen’s Petition for Writ of Mandamus

We have authority to issue a writ of mandamus under the

“All Writs Act,” 28 U.S.C. § 1651. However, “the remedy of

mandamus is a drastic one . . . [and] only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify invocation of this extraordinary remedy.” Bauman v. U.S.

COHEN v. UNITED STATES DISTRICT COURT 14915
Dist. Court, 557 F.2d 650, 654 (9th Cir. 1977) (quoting Kerr

v. U.S. Dist. Court, 426 U.S. 394, 402 (1976)). Although we

determine de novo whether the writ should issue, we must be

firmly convinced that the district court has erred. ValenzuelaGonzalez v. U.S. Dist. Court, 915 F.2d 1276, 1279 (9th Cir.

1990). 

[1] We decide whether to issue the writ under the factors

laid out in Bauman, analyzing whether (1) the party seeking

the writ has no other adequate means, such as direct appeal,

to attain the relief he or she desires; (2) the petitioner will be

damaged or prejudiced in a way not correctable on appeal; (3)

the district court’s order is clearly erroneous as a matter of

law; (4) the district court’s error is an oft-repeated error, or

manifests a persistent disregard of the federal rules; and (5)

the district court’s order raises new and important problems,

or issues of law of the first impression. Bauman, 557 F.2d at

654-55. No single Bauman factor is determinative in every

case nor must all five factors be present to grant the writ.

Valenzuela-Gonzalez, 915 F.2d at 1279. 

A. The Bauman Factors

[2] We will begin by analyzing the district court’s opinion

for clear error, as this factor is “highly significant” and failure

to show clear error may be dispositive of the petition. Cole v.

U.S. Dist. Court, 366 F.3d 813, 820 (9th Cir. 2004); Z-Seven

Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215,

1219-1220 (9th Cir. 2000). The clear error standard is significantly deferential and is not met unless the reviewing court is

left with a “definite and firm conviction that a mistake has

been committed.” Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993); see also DeGeorge v. U.S. Dist. Court, 219 F.3d 930, 936 (9th Cir. 2000)

(applying this standard of review to a district court’s statutory

interpretation). 

14916 COHEN v. UNITED STATES DISTRICT COURT
[3] The Depies Group argues that the district court acted

within its discretion because the PSLRA leaves the lead plaintiff’s selection of counsel subject to the approval of the district court. They contend that the district court disapproved

Cohen’s selection of KGS and, because of that disapproval,

and because the PSLRA does not explicitly provide procedures for the district court to follow after disapproving the

lead plaintiff’s choice of counsel, the district court acted

within its authority by itself selecting class counsel. The district court appears to have relied on a similar justification for

its decision in its January Order.1 This argument is untenable.

Although it cannot be contested that the district court had the

authority to reject Cohen’s choice of lead counsel, it does not

follow that having done so it had the authority to select lead

counsel of its own choosing. This argument misses the fundamental point that the PSLRA unambiguously assigns this

authority to the lead plaintiff. 

[4] When a statute speaks with clarity to an issue, courts

must apply the clear meaning of the statute. Estate of Cowart

v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992). We have

already explained that the PSLRA’s provisions on selection of

lead plaintiff and lead counsel, although containing many

requirements, are “neither overly complex nor ambiguous.”

Cavanaugh, 306 F.3d at 729. Here we address only the

PSLRA’s mandate that “[t]he most adequate 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). This

provision clearly identifies the most adequate plaintiff as the

actor that “select[s] and retain[s]” class counsel. Although this

power is subject to court approval and is therefore not absolute, it plainly belongs to the lead plaintiff. See id.; see also

In re Cendant Corp. Litig., 264 F.3d 201, 273, 277 (3d Cir.

2001) (holding that the PSLRA is clear that “the power to

1The rationale for the district court’s decision is not entirely clear

because, as explained below, the district court appears to have articulated

a different explanation for appointing Girard Gibbs in its December Order.

COHEN v. UNITED STATES DISTRICT COURT 14917
‘select and retain’ lead counsel belongs . . . to the lead plaintiff, and the court’s role is confined to deciding whether to

‘approve’ that choice” and that should the court disagree with

the lead plaintiff’s choice “it should clearly state why . . . and

should direct the lead plaintiff to undertake an acceptable

selection process”).2 The statute expressly provides that lead

plaintiff has the power to select lead counsel, suggesting that

the identity of the party selecting lead counsel was of substantial importance to Congress. See 15 U.S.C. § 78u-4(a)(3); In

re BankAmerica Corp. Secs. Litig., 350 F.3d 747, 751 (8th

Cir. 2003); Cendant, 264 F.3d at 273. Nor does the statute,

framed in mandatory language, designate any other actor as

authorized to select lead counsel or suggest that the district

court may appropriate this authority. It would be difficult for

the statute to be more clear that it is the lead plaintiff who

selects lead counsel, not the district court.

The clause subjecting the lead plaintiff’s selection of counsel “to the approval of the district court” in no way suggests

that a district court shares in the lead plaintiff’s authority to

select lead counsel or that disapproval of a lead plaintiff’s

choice divests the lead plaintiff of this authority. The ordinary

reading of this clause merely gives the district court the limited power to accept or reject the lead plaintiff’s selection.

Given that the PSLRA indisputably assigns to the lead plaintiff the power to select lead counsel, it would be incongruous

to conclude that this power shifts to the district court following disapproval of a lead plaintiff’s selection of lead counsel.

Instead, the opposite conclusion is compelled. The logical

2Cendant also said that a district court may have limited authority to

conduct an “auction” to appoint lead counsel in the rare case that the lead

plaintiff has selected inadequate counsel, is unable or unwilling to select

adequate counsel, and no other suitable party exists to replace that lead

plaintiff if disqualified. See Cendant, 264 F.3d at 277. In such a situation,

a district court may need to take a more active role in the selection of lead

counsel, although it is unclear exactly from whence this authority would

derive in the statutory text. Regardless, we do not confront such facts in

the current case. 

14918 COHEN v. UNITED STATES DISTRICT COURT
interpretation of the statute’s failure to provide an intricate

procedure for the district court to follow after rejecting the

lead plaintiff’s selection is that the power to select lead counsel remains in the hands of the lead plaintiff. Any other result

would allow the district court in all cases to reject lead counsel and then proceed to appoint its own choice. 

The Depies Group’s contention that the district court’s

decision was not clear error because no Ninth Circuit precedent squarely addresses this issue is easily disposed of. Even

were we to agree with the Depies Group that Cavanaugh does

not speak to the district court’s authority to select lead counsel

—at best a dubious proposition given that case’s forceful

rejections of district court authority to select lead counsel—

the plain text of the statute prohibits the course taken by the

district court. See United States v. W. R. Grace, 504 F.3d 745,

757-58 (9th Cir. 2007) (finding clear error based on plain text

of statute); DeGeorge, 219 F.3d at 936; see also Cavanaugh,

306 F.3d at 740-41 (Wallace, J., concurring). 

Although the issue before Cavanaugh was appointment of

lead plaintiff, Cavanaugh repeatedly states that the district

court lacks authority to select lead counsel. See 306 F.3d at

732-34. In addition, that decision certainly strongly implies

that after disapproving a lead plaintiff’s choice of counsel, the

district court is not free to appoint counsel of its own choosing. See id. at 733 n.12 (explaining that the court should “ask

[the plaintiff] whether he would be willing to serve as lead,

even if the court were to disapprove his choice of counsel and

he were forced to seek the services of another attorney”)

(emphasis added). We should not discount these statements

simply because the precise issue in Cavanaugh was the selection of the lead plaintiff, not lead counsel. Much of Cavanaugh’s reasoning is directly premised on the PSLRA’s

mandate that the lead plaintiff, not the district court, selects

lead counsel. See, e.g., id. at 734 (“Finally, allowing the district court to select the lead plaintiff based on its view of who

has negotiated the most favorable fee schedule improperly

COHEN v. UNITED STATES DISTRICT COURT 14919
interferes with the lead plaintiff’s authority and responsibility

to select counsel.”). A contrary holding here would not only

fly in the face of the plain text of the statute, it would disregard much of Cavanaugh. 

[5] The district court’s decision to appoint Girard Gibbs

was clearly erroneous. This error was a usurpation of power,

pointing in favor of the issuance of the writ. 

[6] We have little difficulty determining that the remaining

Bauman factors are also met. With respect to the first and second factors, which are closely related, United States v. Harper, 729 F.2d 1216, 1222 (9th Cir. 1984), a lost choice of

counsel cannot be adequately remedied through means other

than mandamus and the resultant harm is not correctable on

appeal. See Cole, 366 F.3d at 817, 820 (finding that the first

factor is “affirmatively presented in the context of a disqualification of counsel” because it impairs the parties’ right to

counsel of their choice and this harm also satisfies the second

factor); Christensen v. U.S. Dist. Court, 844 F.2d 694, 697

(9th Cir. 1988); see also Richardson-Merrell, Inc. v. Koller,

472 U.S. 424, 438 (1985) (noting that orders disqualifying

counsel in civil cases are not collateral orders subject to

immediate appeal). Indeed, the deprivation of the right to

select lead counsel was precisely the harm identified in Cavanaugh.

3

See 306 F.3d at 740 (Wallace, J., concurring); see

also id. at 734. The fourth and fifth Bauman factors are also

met. See Valenzuela-Gonzalez, 915 F.2d at 1279 (“Mandamus

is particularly appropriate when we are called upon to deter3The Depies Group argues that Cohen has suffered no harm because

KGS still personally represents him and no attorney client relationship

with Girard Gibbs has been foisted on him given that Girard Gibb’s role

as lead counsel is to represent the class as a whole. These arguments are

beside the point: as lead plaintiff, Cohen has the statutory right to select

class counsel, not merely to hire counsel to separately monitor the litigation. Moreover, Cohen’s lack of relationship with Girard Gibbs does not

mitigate the harm the district court’s order causes him; rather, it illustrates

that harm. 

14920 COHEN v. UNITED STATES DISTRICT COURT
mine the construction of a federal procedural rule in a new

context. Such a situation presents the rare case where both the

fourth and fifth Bauman factors are satisfied: we are presented

with a novel question of law that is simultaneously likely to

be ‘oft-repeated.’ ” (citations omitted)). The application of the

PSLRA, particularly the district court’s authority to select

lead counsel, will be raised in future cases, and has previously

been implicated by district court opinions holding that the

court has authority to conduct “auctions” for lead counsel.

See, e.g., In re Quintus Secs. Litig., 201 F.R.D. 475, 486

(N.D. Cal 2001); see also Cendant, 264 F.3d at 258 n.35 (noting that the court had found eight securities litigation cases

governed by the PSLRA employing auctions).

B. Appointing Lead Counsel 

[7] Cohen requests that we remand to the district court with

instructions to appoint KGS as lead counsel. He suggests that

because the district court considered his choice of counsel in

deciding to select him co-lead plaintiff and found that KGS

was free from conflict and would vigorously prosecute the

action, this ends the district court’s inquiry into the adequacy

of counsel.4 We think that would go too far. The court concluded that Cohen should be lead plaintiff, but acted under the

misapprehension that it was the district court’s role and not

the lead plaintiff’s role to choose lead counsel. Now that our

4Although none of the parties raise the issue, the district court may have

erred in appointing “co-lead plaintiffs,” a practice occasionally employed

by district courts. See, e.g., Yousefi v. Lockheed Martin Corp., 70 F. Supp.

2d 1061, 1070 (C.D. Cal. 1999) (appointing an individual and city as lead

plaintiffs); In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 47

(S.D.N.Y. 1998) (appointing three co-lead plaintiffs). While the PSLRA

allows a group to serve as lead plaintiff, it also consistently refers to the

lead plaintiff and most adequate plaintiff in the singular, suggesting that

the district court should appoint only one lead plaintiff, whether an individual or a group. See 15 U.S.C. § 78u-4(a)(3); see also Cendant, 264 F.3d

at 223 n.3. The appointment of multiple lead plaintiffs would also tend to

run counter to the sequential inquiry we outlined for selection of lead

plaintiff. See Cavanaugh, 306 F.3d at 730-31. 

COHEN v. UNITED STATES DISTRICT COURT 14921
mandate will assure that Cohen chooses lead counsel, it is for

the district court to approve or disapprove Cohen’s choice of

lead counsel subject to appropriate criteria. 

[8] Consistent with congressional intent in enacting the

PSLRA to vest authority for selecting class counsel in the lead

plaintiff and our reasoning in Cavanaugh, the district court

should not reject a lead plaintiff’s proposed counsel merely

because it would have chosen differently. See 306 F.3d at

732, 734 & n.14 (explaining that selection of lead counsel “is

not a beauty contest,” that selection of counsel is an “important client prerogative,” and that a contrary rule would “eviscerate” the PSLRA’s assumption that the lead plaintiff is as

or more capable than the court to select class counsel) (quoting Cendant, 264 F.3d at 276). Rather, like the Third Circuit,

we hold that if the lead plaintiff has made a reasonable choice

of counsel, the district court should generally defer to that

choice. See Cendant, 264 F.3d at 276 (enumerating factors to

consider in conducting this inquiry, including the lead plaintiff’s sophistication and experience, the process through

which the lead plaintiff selected its candidates for and final

choice of lead counsel, the qualifications and experience of

selected counsel, and evidence of arms-length negotiations

between lead plaintiff and proposed counsel); see also H.R.

Conf. Rep. No. 104-369 (1995), reprinted in 1995

U.S.C.C.A.N. 730, 734 (suggesting that the district court’s

authority to disapprove lead counsel should be exercised

when necessary to protect the interests of the class). In the

event that the district court determines the lead plaintiff has

not made a reasonable choice of counsel, the court should

articulate its reasons for disapproving plaintiff’s choice and

provide an opportunity for lead plaintiff to select acceptable

counsel. See Cendant, 264 F.3d at 277; cf. Cavanaugh, 306

F.3d at 733 n.12. 

The district court issued conflicting rationales for its decision to appoint Girard Gibbs co-lead counsel, leaving it

unclear whether the court was disapproving Cohen’s choice of

14922 COHEN v. UNITED STATES DISTRICT COURT
KGS as inadequate or whether it merely found Girard Gibbs

to be a better choice. Compare December Order (explaining

that the district court had “review[ed] each firm’s resume”

and decided Girard Gibbs was “the most qualified counsel”

without any discussion of whether Cohen’s choice was inadequate) with January Order (suggesting the district court disapproved of Cohen’s choice of lead counsel). Regardless, even

if the district court rejected KGS, it is not clear why it did so

or whether the court applied appropriate deference to Cohen’s

choice. Rather than attempting to evaluate Cohen’s choice of

KGS on the limited record before us, we remand to the district

court to consider, using appropriate deference, whether KGS

was an unreasonable choice of lead counsel under the circumstances.

II. The Depies Group’s Requested “Remedy”

[9] Having determined that the district court’s decision to

appoint Girard Gibbs was clear error justifying a writ of mandamus, we are confronted with the Depies Group’s assertion

that the proper remedy is to remand to the district court with

instructions to reassess the appointment of lead plaintiff. We

decline to consider the merits of whether the district court

erred in refusing to appoint the Depies Group as lead plaintiff

because it is outside the scope of the mandamus petition. 

In its response to Cohen’s petition for mandamus, the

Depies Group raises the argument that the district court erred

in appointing lead plaintiff. Cohen’s petition in no way challenged the appointment of lead plaintiff. The Depies Group

cite no authority that they may permissibly raise such an

entirely distinct issue5 in their response to Cohen’s petition

5The Depies Group’s assertion at oral argument that these issues are

related because the district court may have “co-joined” the selection of

Cohen as lead plaintiff with the selection of Girard Gibbs as lead counsel

is entirely speculative and unsupported by the record. Regardless, even

were this the case it would not excuse the Depies Group’s failure to properly assert its challenge to Cohen’s appointment as lead plaintiff. 

COHEN v. UNITED STATES DISTRICT COURT 14923
and we are aware of none that so hold. See Fed R. App. Proc.

21; cf. In re Buskin Assoc., Inc., 864 F.2d 241, 247-48 (1st

Cir. 1989) (explaining that mandamus neither contemplates

nor permits the filing of counterclaims). They also make no

attempt to satisfy the Bauman factors or demonstrate that they

are entitled to a writ of mandamus, despite our precedent that

mandamus is the proper vehicle to challenge the appointment

of lead plaintiff at this stage in the litigation absent certification of an interlocutory appeal. See Cavanaugh, 306 F.3d at

730, 739; Z-Seven, 231 F.3d at 1218-20. Rather, it appears

that the Depies Group, by couching its arguments in terms of

a “remedy,” attempts to avoid the need to file a petition and

the strict requirements for a writ of mandamus, and invites

this court to disregard the same. We decline the invitation. Cf.

DeGeorge, 219 F.3d at 935 (explaining that the strict rules

governing mandamus prevent parties from “eviscerat[ing] the

statutory scheme established by Congress to strictly circumscribe piecemeal appeal”) (quotation omitted); In re Bushkin,

864 F.2d at 247-48.

CONCLUSION

[10] Cohen’s petition for writ of mandamus is granted to

the extent it seeks to vacate the district court’s order appointing Girard Gibbs. We remand to the district court to accept or

reject Cohen’s selection of KGS, applying the applicable standard. 

WRIT GRANTED IN PART.

14924 COHEN v. UNITED STATES DISTRICT COURT