NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

In re: BRIDGESTONE INVESTMENT CORPORATION LIMITED,

______________________________ BRIDGESTONE INVESTMENT CORPORATION LIMITED,

Petitioner,

v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO,

Respondent, KALMAN ISAACS; et al.,

Real Parties in Interest. No. 19

- 70031
D.C. No. 3:18

- cv - 04865

- EMC

MEMORANDUM *

Petition For Writ Of Mandamus Argued and Submitted August 7, 2019 San Francisco, California Before: O'SCANNLAIN, SILER, ** and NGUYEN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 

# FILED

OCT 8 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSIn this securities class action suit, Bridgestone Investment Corporation

Limited petitions for writ of mandamus fo llowing the district court’s selection of lead plaintiff

. The district court appointed Glen Littleton; Bridgestone now argues the selection violated the Private Securities Litigation Reform Act of 1995 (“PSLRA”). T he petition for writ of mandamus is deni ed

. “[M] andamus is an extraordinary remedy , ” Miller v. French , 530 U.S. 327, 339 (2000) , and “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify [its] invocation.” Bauman v. U .S. Dist. Court , 557 F.2d 650, 654

- 55 (9 th Cir. 1977) (quoting Will v. United States , 389 U.S. 90, 95 (1967)) (outlining factors to consider)

. U nder Bauman , one factor to consider is whether the district court clearly erred in its order; a petitioner’s failure to show clear error may be dispositive of a petition for mandamus

. Cohen v. U .S. Dist. C t. for N. D. Cal

. , 586 F.3d 703, 708 (9th Cir. 2009) (citing Z

- Seven Fund, Inc. v. Motorcar Parts & Accessories , 231 F.3d 1215, 1219

- 20 (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.’” Id. (quoting Concrete Pipe
& Prods. v. Constr. Laborers Pension Tr

. , 508 U.S. 602, 623 (1993)). The district court did not clearly err in selecting a lead plaintiff so
mandamus relief is not warranted . Consistent with the PSLRA, the court order edthe potential lead plaintiffs by the amount of losses they allege d

. See I n re Cavanaugh , 306 F.3d 726, 7 30 (9th Cir. 2002) . Bridgestone and Littleton were ranked third and fourth respectively. Beginning at the top of the list, the district
court considered whether the potential lead having the largest asserted loss , Tempus In ternational Fund, satisfied the adequacy and typicality requirements of
Federal Rule of Civil Procedure 23. After it found that Tempus did not, it continued down the list sequentially , checking each plaintiff for adequacy and typicality, and ultimately st op ped at Littleton : the potential lead plaintiff having the largest asserted loss that also satisfied Rule 23’s requirements.
This procedure was consistent with the PSLRA

. Id. Bridgestone’s attempt to cast the process as freewheeling relies heavily on questions posed by the district court during a preliminary hearing on the selection motion. But n othing in the
district court’s information

- gathering statements sup plant s its subsequent order faithfully applying the PSLRA

. Nor did the district court clearly err in finding Bridgestone was entangled with a unique defense and therefore atypical. Littleton , relying specifically on a loss chart entered in the record by Bridgestone , pointed out that a substantial portion of Bridgestone’s asserted lo ss derived from the purchase of call options at a price of $450 on the day of Musk’s tweets. Little ton argues it is nonsensical to conclude that Bridgestone purchased the options in reliance on Musk’s tweets ,since the tweet contemplated the company going private at $420 per share ( before

the $450 call options could be exercised )

. Bridgestone counters that it is entitled to a presumption of reliance because
the stock traded in an efficient market. See Basic Inc. v. Levinson , 485 U.S. 224, 247 (1988). An d the district court’s order require s it prove direct reliance on Musk’s tweet, stripping it of the Basic presumption.
But the district court’s order simply recognize s that the Basic presumption is
rebuttable. See, e.g. , Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 268 (201 4 ). “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption
of reliance.” Basic , 485 U.S . at 248. Bridgestone may ultimately prove the call options to be insufficient rebuttal
evidence

. However , at this stage, the question is whether Bridgestone must “prepare to meet defenses that are not typical of the defenses which may be raised agains t other members of the proposed class.” Hanon v. Dataproducts Corp. , 976 F.2d 497, 508 (9th Cir. 1992) . There is no evidence that other plaintiffs are subject to the same rebuttal argument. 1 And, given that the call options make up a

1 Bridgestone argues Littleton was subject to this unique defense because he also purchased call options at prices above $420. But, unlike Bridgestone, Littleton provided evidence that he purchased the call options prior to the class period andsignificant amount of Bridgestone’s asserted loss, it is likely to be vigorously

challenged by defendants. Thus, it was not clear error for the district court to conclude that a major focus of litigation against Bridgestone will concern a defense unique to it.
PETITION DE NIED

.

Musk’s twee t. The purchases therefore do not offer the same basis for challenging Littleton’s reliance

.