UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

DETROIT DIVISION

JONATHAN WILKOF, Individually and on

Behalf of All Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12830-RHC-MJH

CLASS ACTION

MOTION OF TUSHAR AMIN FOR

CONSOLIDATION OF RELATED

ACTIONS, APPOINTMENT AS LEAD

PLAINTIFF AND APPROVAL OF LEAD

PLAINTIFF’S SELECTION OF LEAD

COUNSEL

DEANNA ADAMS, EUGENE DENEUTTE,

COLLIN D. SMITH and BARRY S.

WEINER, Individually and on Behalf of All

Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12900-VAR-MKM

MOTION OF TUSHAR AMIN FOR CONSOLIDATION OF RELATED ACTIONS, 

APPOINTMENT AS LEAD PLAINTIFF AND APPROVAL OF LEAD PLAINTIFF’S

SELECTION OF LEAD COUNSEL

NOW COMES proposed lead plaintiff Tushar Amin (“Movant”), and by and through

Counsel, moves this Court, under §§21(D) et seq. of the Securities Exchange Act of 1934 as

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 1 of 19
1This motion is filed pursuant to Section 21 of the Securities Exchange Act as amended

by the PSLRA. This Section provides that, within 60 days after publication of the required

notice, any member of the proposed class may apply to the Court to be appointed as lead

plaintiff, whether or not they have previously filed a complaint in the underlying action. 

Consequently, counsel for Movant has no way of knowing who, if any, competing lead plaintiff

candidates are at this time. As a result, counsel for Movant has been unable to meet and confer

with opposing counsel, and respectfully requests that the conference requirement of E. D. Mich.

LR 7.1(a) be waived for the purpose of this motion

- 2 -

amended by the Private Securities Litigation Reform Act of 1995 (“PSLRA”), for an order (a)

consolidating related actions, (b) appointing Tushar Amin as Lead Plaintiff, and (c) approving

Movant’s selection of Glancy Binkow & Goldberg LLP as Lead Counsel for the Class.

This motion is brought pursuant to the Securities Exchange Act of 1934, the Federal

Rules of Civil Procedure and the PSLRA.

This motion is supported by the attached brief and the Court's complete files and records

in this action, as well as such further argument as the Court may allow at a hearing on this

motion.1

Respectfully submitted,

DATED: September 15, 2009 THE MILLER FIRM

By: /s/ E. Powell Miller 

E. Powell Miller

950 West University Drive, Suite 300

Rochester, Michigan 48307

Telephone: (248) 841-2200

Facsimile: (248) 652-2852

Proposed Liaison Counsel

GLANCY BINKOW & GOLDBERG LLP

Lionel Z. Glancy 

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 2 of 19
- 3 -

Michael Goldberg 

1801 Avenue of the Stars, Suite 311

Los Angeles, California 90067

Telephone: (310) 201-9150

Facsimile: (310) 201-9160

Proposed Lead Counsel

ENDFIELD 

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 3 of 19
--

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

DETROIT DIVISION

JONATHAN WILKOF, Individually and on

Behalf of All Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12830-RHC-MJH

CLASS ACTION

BRIEF IN SUPPORT OF MOTION OF

TUSHAR AMIN FOR CONSOLIDATION

OF RELATED ACTIONS, 

APPOINTMENT AS LEAD PLAINTIFF

AND APPROVAL OF LEAD

PLAINTIFF’S SELECTION OF LEAD

COUNSEL

DEANNA ADAMS, EUGENE DENEUTTE,

COLLIN D. SMITH and BARRY S.

WEINER, Individually and on Behalf of All

Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12900-VAR-MKM

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 4 of 19
-iCONTROLLING OR MOST APPROPRIATE AUTHORITIES

In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996)

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

In re eSpeed, Inc. Securities Litigation, 232 F.R.D. 95, 102 (S.D.N.Y. 2005)

Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2nd Cir. 1990)

Johnson v. Dana Corp., 236 F.R.D. 349 (N.D. Ohio 2006)

Lewis v. ACB Business Services, Inc., 135 F.3d 389 (6th Cir. 1998)

Federal Rule of Civil Procedure 42(a)

Federal Rule of Civil Procedure 23

Private Securities Litigation Reform Act

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 5 of 19
-iiSTATEMENT OF ISSUES PRESENTED

Should the related actions be consolidation?

Movant Says: Yes

Should movant be appointed lead plaintiff?

Movant Says: Yes

Should movant’s selection of counsel be approved?

Movant Says: Yes

ENDFIELD 

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 6 of 19
-1-

Proposed lead plaintiff Tushar Amin (hereinafter, “Movant”), respectfully submits this

brief in support of his motion for consolidation of related actions, appointment as lead plaintiff

and for approval of lead plaintiff’s selection of lead counsel.

I. FACTUAL BACKGROUND

This is a securities class action on behalf of purchasers of the securities of Caraco 

Pharmaceutical Laboratories, Ltd. (“Caraco” or the “Company”) between May 29, 2008 and

June 25, 2009, inclusive (the “Class Period”), seeking to pursue remedies under the Securities

Exchange Act of 1934 (the “Exchange Act”).

Caraco is engaged primarily in the business of developing, manufacturing, marketing

and distributing throughout the U.S. generic and private-label pharmaceuticals to the nation's

largest wholesalers, distributors, warehousing and non-warehousing chain drugstores and

managed care providers. These products are intended to treat a variety of disorders including

hypertension, arthritis, epilepsy, diabetes, psychosis, depression and pain management.

Throughout the Class Period, defendants made false and/or misleading statements,

and failed to disclose material adverse facts about the Company's business, operations and

prospects. Specifically, defendants made false and/or misleading statements and/or failed to

disclose that: (1) although Caraco represented that its facilities were maintained in accordance

with United States Food and Drug Administration (“FDA”) guidelines, the Company failed to

meet the FDA’s current Good Manufacturing Practice (“cGMP”) requirements, which assure the

quality of manufactured drugs; (2) the Company failed to take corrective measures in order to

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 7 of 19
-2-

have its manufacturing facilities comply with the FDA’s cGMP requirements; (3) the Company

had failed to remedy repeat violations of FDA regulations previously observed and documented

by the FDA; (4) the foregoing significantly jeopardized the Company’s ability to gain FDA

approval of pending new drug applications; and (5), as a result of these problems, the Company

would have to recall certain products.

On November 3, 2008, Caraco revealed that the Company had received a warning letter

from the FDA. Caraco disclosed that the letter was issued as a follow up to the last FDA

inspection of the Company's manufacturing facility in Detroit, Michigan, which was initiated in

May 2008 and resulted in the issuance of a Form 483 in June 2008 following the inspection. 

Caraco, however, represented to investors that the Company had responded to all the

observations made in the Form 483 and had taken “corrective actions,” which were

“substantially completed.”

On this news, over the next three days, shares of Caraco declined by $2.26 per share,

more than 22%, to close on November 5, 2008, at $7.91 per share, on unusually heavy volume.

On March 31, 2009, Caraco further disclosed that it had commenced a voluntary

recall, with the knowledge of the FDA, of certain tablets manufactured by the Company because

the tablets might have differed in size and therefore could have more or less of the active

ingredient.

On this news, shares of Caraco declined $1.03 per share, more than 22%, to close on

March 31, 2009, at $3.52 per share, on unusually heavy volume.

Then, on June 25, 2009, the last day of the Class Period, the FDA announced that U.S.

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 8 of 19
-3-

Marshals had seized drug products manufactured by Caraco from the Company’s facilities. 

According to the FDA, this action followed Caraco’s continued failure to meet the cGMP

requirements. The FDA stated that through the seizure the agency sought to immediately stop

the Company from further distributing drugs until there is assurance that the Company complies

with good manufacturing requirements.

Asa result of this news, shares of Caraco declined $1.79 per share, approximately 43%, to

close on June 25, 2009, at $2.39 per share, on unusually heavy trading volume. 

II. PROCEDURAL HISTORY

Plaintiff Jonathan Wilkof commenced the instant action on July 17, 2009, and on that day

counsel for plaintiff published a notice of the pendency of plaintiff’s case on Business Wire, a

widely circulated national business-oriented wire service. See Exhibit A. In addition to the

Wilkof action, a related was filed in this District (collectively, the “Related Actions”), and each

of the Related Actions are reflected above in the caption of this document.

Movant brings the instant motion pursuant to the Wilkof complaint and notice of

pendency, and files this motion prior to expiration of the 60-day period from publication of the

July 17, 2009, notice.

III. ARGUMENT

A. The Related Actions Should Be Consolidated

Consolidation pursuant to Rule 42(a) is proper when actions involve common questions

of law and fact. See Lewis v. ACB Business Services, Inc., 135 F.3d 389, 412 (6th Cir. 1998). 

The Court has broad discretion under this Rule to consolidate cases pending within its District.

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 9 of 19
-4-

Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2nd Cir. 1990).

The actions pending before this Court present similar factual and legal issues, as they all

involve the same subject matter, and present the same legal issues. Each alleges the same

violations of federal securities laws, and is based on the same wrongful course of conduct. Each

names the Company and certain of its officers and/or directors as defendants. Because the

actions arise from the same facts and circumstances and involve the same subject matter, the

same discovery and similar class certification issues will be relevant to all Related Actions. 

Accordingly, consolidation under Rule 42(a) is appropriate.

B. Tushar Amin Should Be Appointed Lead Plaintiff

Section 21D(a)(3)(B) of the PSLRA provides the procedure for selecting lead plaintiff in

class actions brought under the Act. The PSLRA directs courts to consider any motion to serve

as lead plaintiff filed by class members in response to a published notice of class action by the

later of (i) 60 days after the date of publication of the notice; or (ii) as soon as practicable after

the Court decides any pending motion to consolidate. 15 U.S.C. §78u-4(a)(3)(B). The PSLRA

provides a “rebuttable presumption” that the most “adequate plaintiff” to serve as lead plaintiff

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 of the Federal Rules of

Civil Procedure.

 15 U.S.C. §78u-4(a)(3)(B)(iii).

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 10 of 19
2See Bassin v. deCODE Genetics, Inc., 230 F.R.D. 313, 315 (S.D.N.Y 2005).

-5-

As set forth below, Movant Tushar Amin satisfies all three of these criteria, and thus is

entitled to the presumption that he is the most adequate lead plaintiff for the Class.

1. Movant Is Making A Motion In Response To A Notice

Plaintiff Jonathan Wilkof commenced the instant action on July 17, 2009, and on that

day, pursuant to §21D(a)(3)(A)(I) of the PSLRA, counsel for plaintiff published a notice of

pendency of plaintiff’s case on Business Wire – a widely circulated national business-oriented

wire service2 – announcing that a securities class action had been filed against defendants herein,

and advising purchasers of Caraco securities that they had until September 15, 2009, to file a

motion to be appointed as lead plaintiff. Movant files the instant motion pursuant to plaintiff

Jonathan Wilkof’s complaint and published notice, and submits herewith Movant’s sworn

certification attesting that he is willing to serve as representative of the Class and willing to

provide testimony at deposition and trial, if necessary. See Exhibit B. Movant therefore satisfies

the requirement of either filing a complaint or making a motion in response to a published notice.

2. Movant Has The Requisite Financial Interest In This Action

The PSLRA requires a court to adopt the rebuttable presumption that “the most adequate

plaintiff . . . is the person or group of persons that . . . has the largest financial interest in the relief

sought by the class.” 15 U.S.C. §78u-4(a)(3)(B)(iii). 

During the Class Period, Movant purchased 109,596 shares of Caraco at prices alleged to

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 11 of 19
-6-

be artificially inflated by defendants’ materially false and misleading statements and omissions

and, as a result, Movant has suffered losses of $105,587,10. See Exhibit C. 

Movant is not aware of any other Class member that has filed an application for

appointment as lead plaintiff, and thus satisfies the largest financial interest requirement to be

appointed as lead plaintiff for the Class. Greebel v. FTP Software, 939 F. Supp. 57, 64 (D. Mass.

1996). To the best of his knowledge, Movant believes that he has the largest known financial

interest in this case of any lead plaintiff movant, and and accordingly is presumed to be the

“most adequate plaintiff.” See In re Cavanaugh, 306 F.3d 726, 730 (9th Cir. 2002). 

C. Tushar Amin Satisfies The Requirements Of Rule 23 

Of The Federal Rules Of Civil Procedure

Section 21D(a)(3)(B)(iii)(I)(cc) of the PSLRA further provides that, in addition to

possessing the largest financial interest in the outcome of the litigation, a lead plaintiff must

“otherwise satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure.” 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 interest of the class.

Fed. R. Civ. P. 23(a).

In making its determination that a lead plaintiff satisfies the requirements of Rule 23, the

Court need not raise its inquiry to the level required in ruling on a motion for class certification. 

See In re eSpeed, Inc. Securities Litigation, 232 F.R.D. 95, 102 (S.D.N.Y. 2005). A preliminary

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 12 of 19
-7-

showing that a PSLRA movant satisfies the requirements of Rule 23 is sufficient. Id. Courts

thus limit their inquiry to the typicality and adequacy prongs of Rule 23(a), and defer

examination of the remaining requirements until class certification. Id.

a. Movant’s Claims Are Typical

The Rule 23(a) typicality requirement is satisfied when a plaintiff’s claims “arise[] from

the same event or practice or course of conduct that gives rise to the claims of other class

members, and if his or her claims are based on the same legal theory.” In re American Medical

Systems, Inc., 75 F.3d 1069, 1082 (6th Cir. 1996). Rule 23 does not require the lead plaintiff to

be identically situated with all Class members. It is enough that the lead plaintiff’s situation

shares a common issue of law or fact. See Craft v. Vanderbilt University, 174 F.R.D. 396, 404

(M.D.Tenn. 1996). Here, Movant’s claims are typical of the claims asserted by the Class. 

Movant, like all members of the Class, alleges that defendants violated the Exchange Act by

publicly disseminating a series of false and misleading statements concerning Caraco’s business,

operations and prospects. Movant, like all of the members of the Class, purchased Caraco

securities during the Class Period at prices artificially inflated by defendants’ misrepresentations

and omissions, and was damaged thereby. Movant’s interests are closely aligned with other Class

members, and they are, therefore, typical of the other members of the Class.

b. Movant Is An Adequate Representative

The adequacy of representation requirement of Rule 23 is satisfied where it is established

that a representative party has the ability to represent the claims of the class vigorously and there

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 13 of 19
-8-

is no conflict between the movant's claims and those asserted on behalf of the class. In re

American Medical Systems, 75 F.3d at 1083.

Movant has demonstrated his adequacy as lead plaintiff by evincing a strong desire to

prosecute this action on behalf of the Class. Movant herein has communicated with experienced

counsel concerning this case and has made this motion to be appointed lead plaintiff. Movant is

not aware of any antagonism between his interests and those of other Class members. Movant

also has sustained substantial financial losses from his investments in Caraco securities and is,

therefore, extremely motivated to pursue the claims in this action. See Exhibit C.

4. Tushar Amin Is Presumptively The Most Adequate Lead Plaintiff

The presumption in favor of appointing Tushar Amin as lead plaintiff may be rebutted

only upon proof “by a purported member of the Plaintiffs’ class” that the presumptively most

adequate plaintiff:

(aa) will not fairly and adequately protect the interest of the class; or

(bb) is subject to unique defenses that render such plaintiff incapable of adequately

representing the class.

15 U.S.C. § 78 u-4(a)(3)(b)(iii)(I); Johnson v. Dana Corp., 236 F.R.D. 349, 351 (N.D. Ohio

2006).

The presumption that Movant is the most adequate lead plaintiff is not, therefore, subject

to rebuttal. Movant has suffered substantial losses – in excess of $105,000 – and believes that he

has the largest financial interest in this case. The ability of Movant to fairly and adequately

represent the Class is discussed above. In addition, Movant is not aware of any unique defenses

defendants could raise against him that would render Movant inadequate to represent the Class.

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 14 of 19
-9-

Moreover, Movant has selected and retained competent and experienced counsel to represent

him and the Class. Accordingly, Tushar Amin is presumptively the most adequate lead plaintiff

and should be appointed lead plaintiff for the Class.

B. The Court Should Approve Lead Plaintiff’s Choice of Counsel

The PSLRA vests authority in the lead plaintiff to select and retain counsel, subject only

to approval of the Court. See 15 U.S.C. §77u-4(a)(3)(B)(v). Thus, the Court should not disturb

the lead plaintiff’s choice of counsel unless “necessary to protect the interest of the plaintiff

class.” 15 U.S.C. §77u-4(a)(3)(B)(iii)(II)(aa); see also In re Cavanaugh 306 F.3d 726, 733 (9th

Cir. 2002). 

In the present case, Movant has retained Glancy Binkow & Goldberg LLP to pursue this

litigation on his behalf, and will retain this firm as plaintiff’s lead counsel, with The Miller Law

Firm, P.C. as liaison counsel, in the event Movant is appointed lead plaintiff. Glancy Binkow &

Goldberg LLP possesses extensive experience in the area of securities litigation and has

successfully prosecuted numerous securities fraud class actions on behalf of injured investors, as

reflected by the firm’s resumé attached as Exhibit D. Thus, the Court may be assured that, by

granting the Tushar Amin’s motion, the Class will receive the highest caliber of legal

representation.

IV. CONCLUSION

For the foregoing reasons, Movant respectfully requests that the Court grant his motion

and enter an Order (a) consolidating related actions, (b) appointing Tushar Amin as lead plaintiff

on behalf of the Class, and (c) approving Movant’s choice of Glancy Binkow & Goldberg LLP

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 15 of 19
-10-

as lead counsel for the Class, with The Miller Law Firm, P.C. as liaison counsel, and granting

such other relief as the Court may deem just and proper.

Respectfully submitted,

DATED: September 15, 2009 THE MILLER LAW FIRM, P.C. 

By: /s/ E. Powell Miller 

E. Powell Miller

950 West University Drive, Suite 300

Rochester, Michigan 48307

Telephone: (248) 841-2200

Facsimile: (248) 652-2852

Proposed Liaison Counsel

GLANCY BINKOW & GOLDBERG LLP

Lionel Z. Glancy 

Michael Goldberg 

1801 Avenue of the Stars, Suite 311

Los Angeles, California 90067

Telephone: (310) 201-9150

Facsimile: (310) 201-9160

Proposed Lead Counsel

ENDFIELD 

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 16 of 19
-iUNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

DETROIT DIVISION

JONATHAN WILKOF, Individually and on

Behalf of All Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12830-RHC-MJH

CERTIFICATE OF SERVICE

DEANNA ADAMS, EUGENE DENEUTTE,

COLLIN D. SMITH and BARRY S.

WEINER, Individually and on Behalf of All

Others Similarly Situated,

Plaintiff,

v.

CARACO PHARMACEUTICAL

LABORATORIES, LTD., DANIEL H.

MOVENS and MUKUL RATHI,

Defendants.

No. 2:09-cv-12900-VAR-MKM

I, the undersigned, say:

I am a citizen of the United States and am employed in the office of a member of the Bar

of this Court. I am over the age of 18 and not a party to the within action. My business address

is Miller Building, 950 West University Drive, Suite 300, Rochester, Michigan 48307.

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 17 of 19
-iiOn September 15, 2009, I caused the foregoing, along with the referenced Exhibits to be

served on the parties shown below by posting the above-referenced documents on the ECF

website, for electronic service pursuant to ECF rules, and, in the case of those persons not listed

as recipients of electronic service, by instead placing a true copy thereof enclosed in a sealed

envelope with postage thereon fully prepaid in the United States mail at Dallas, Texas: 

SEE SERVICE LIST

Executed on September 15, 2009, at Rochester, Michigan.

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

 /s/ Darryl Bressack 

 Darryl Bressack

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 18 of 19
-iiiSERVICE LIST

Electronically To All ECF-Registered Entities

S. Thomas Wienner

Weinner, Gould

950 W. University Drive

Suite 350

Rochester , MI 48307

248-841-9400

Email: twienner@wiennergould.com

Joe Kendall

Hamilton Lindley

Kendall Law Group, LLP

3232 McKinney, Ste. 700

Dallas, TX 75204

214-744-3000

By US Mail To All Known Non-ECF-Registered Entities

Caraco Pharmaceutical Laboratories, Ltd.

1150 Elijah McCoy Drive

Detroit, MI 48202

313-871-8400

Daniel H. Movens

c/o Caraco Pharmaceutical Laboratories, Ltd.

1150 Elijah McCoy Drive

Detroit, MI 48202

313-871-8400

Mukul Rathi

c/o Caraco Pharmaceutical Laboratories, Ltd.

1150 Elijah McCoy Drive

Detroit, MI 48202

313-871-8400

Case 2:09-cv-12900-VAR-MKM Document 11 Filed 09/15/2009 Page 19 of 19