UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

BRAUN, et al., 

v. 

GT SOLAR INTERNATIONAL, INC., et al. 

) 

) 

) Civil No.: 08-cv-00312 

) 

) 

) 

) 

) 

) 

) 

LEAD PLAINTIFF’S MEMORANDUM IN SUPPORT OF 

MOTION FOR CLASS CERTIFICATION

Kenneth Bouchard (NH Bar # 51) 

BOUCHARD, KLEINMAN AND 

 WRIGHT PA 

1 Merrill Drive, Suite 6 

Hampton, NH 03842 

Telephone: (603) 926-9333 

Facsimile: (603) 929-1221 

Liaison Counsel for Lead Plaintiff 

Daniel S. Sommers (Pro Hac Vice) 

Matthew K. Handley (Pro Hac Vice) 

Joshua M. Kolsky 

COHEN MILSTEIN SELLERS & 

 TOLL PLLC 

1100 New York Avenue, N.W. 

West Tower, Suite 500 

Washington, D.C. 20005-3964 

Telephone: (202) 408-4600 

Facsimile: (202) 408-4699 

 

Lead Counsel for Lead Plaintiff

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 1 of 20
TABLE OF CONTENTS

Page

 -iI. INTRODUCTION ............................................................................................................. 1 

II. STATEMENT OF FACTS ................................................................................................ 2 

 A. Summary of the Complaint.................................................................................... 2 

 B. The Proposed Class Representative ....................................................................... 3 

III. THE STANDARDS FOR CLASS CERTIFICATION ..................................................... 4 

IV. THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23 AND 

SHOULD BE PERMITTED TO PROCEED AS A CLASS ACTION............................. 5 

A. The Proposed Class Meets The Requirements of Rule 23(a) ................................ 5 

1. The Members Of The Class Are So Numerous That Joinder Of All 

Members Is Impracticable.......................................................................... 5 

2. There Are Common Questions of Law and Fact ....................................... 5 

3. Lead Plaintiff’s Claims Are Typical Of Those Of The Class.................... 7 

4. Lead Plaintiff Will Fairly and Adequately Protect the Interests Of 

The Class.................................................................................................... 8 

B. The Requirements Of Rule 23(b)(3) Are Satisfied.............................................. 10 

1. Common Questions Of Law and Fact Predominate ................................ 10 

2. A Class Action Is Superior To Any Other Available Method For 

Resolving This Controversy .................................................................... 12 

V. CONCLUSION................................................................................................................ 13

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 2 of 20
i 

TABLE OF AUTHORITIES

Page(s) 

CASES

Amchem Products, Inc. v. Windsor,

 521 U.S. 591 (1997).................................................................................................................10 

Andrews v. Bechtel Power Corp., 

780 F.2d 124 (1st Cir. 1985)..................................................................................................5, 8 

Basic Inc. v. Levinson, 

485 U.S. 224 (1988).............................................................................................................2, 11 

Gen. Tel. Co. of the Southwest v. Falcon, 

457 U.S. 147 (1982)...................................................................................................................7 

Guckenberger v. Boston Univ., 

957 F. Supp. 306 (D. Mass. 1997) .............................................................................................7 

Herman & Maclean v. Huddleston, 

459 U.S. 375 (1983).................................................................................................................11 

In re Bank One Secs. Litigation/First Chi. S’Holder Claims, 

No. 00-0767, 2002 U.S. Dist. LEXIS 8709 (N.D. Ill. May 9, 2002).........................................2 

In re Boston Sci. Corp. Secs. Litig., 

604 F. Supp. 2d 275 (D. Mass. 2009) .............................................................................. passim

In re Chiang, 

385 F.3d 256 (3d Cir. 2004).......................................................................................................6 

In re Constar Int’l Inc. Sec. Litig., 

585 F.3d 774 (3d Cir. 2009).....................................................................................................11 

In re Dreyfus Aggressive Growth Mut. Fund Litig., 

No. 98-4318, 2000 U.S. Dist. LEXIS 13469 (S.D.N.Y. Sept. 19, 2000)...................................2 

In re Initial Public Offering Sec. Litig, 

243 F.R.D. 79 (S.D.N.Y. 2007) ...............................................................................................11 

In re Lupron® Mktg. and Sales Practices Litig., 

228 F.R.D. 75 (D. Mass. 2005)..................................................................................................7 

In re Metro. Sec. Litig., 

No. CV-04-25, 2008 U.S. Dist. LEXIS 100325 (E.D. Wash. Nov. 25, 2008) ........................11 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 3 of 20
-iiIn re PE Corp. Secs. Litig., 

228 F.R.D. 102 (D. Conn. 2005)................................................................................................2

In re Pharm. Indus. Average Wholesale Price Litig., 

230 F.R.D. 61 (D. Mass. 2005)..................................................................................................6 

In re Prestige Brands Holdings, 

Inc., No. 05-6924, 2007 U.S. Dist. LEXIS 66199 (S.D.N.Y. Sept. 4, 2007) ............................2 

In re Reliant Sec. Litig., 

No. 02-1810, 2005 U.S. Dist. LEXIS 9716 (S.D. Tex. Feb. 18, 2005) .....................................2 

In re Transkaryotic Therapies, Inc. Sec. Litig., 

2005 U.S. Dist. LEXIS 29656 .................................................................................................11 

In re Turkcell Iletisim Hizmetler, 

209 F.R.D. 353 (S.D.N.Y. 2002) ...............................................................................................2 

In re Tyco Int’l, Ltd. Multidistrict Litig., 

236 F.R.D. 62 (D.N.H. 2006) .......................................................................................... passim

Kinney v. Metero Global Media, Inc., 

C.A. No. 99-579 ML, 2002 U.S. Dist. LEXIS 18628 (D.R.I. Aug. 22, 2002) ................6, 8, 13 

Kirby v. Cullinet Software, Inc., 

116 F.R.D. 303 (D. Mass. 1987)..........................................................................................2, 12 

Levitan v. McCoy, 

No. 00-5096, 2003 U.S. Dist. LEXIS 5078 (N.D. Ill. Mar. 28, 2003).......................................2 

Pettway v. Harmon Law Offices, P.C., 

No. 03-cv-10932, 2005 U.S. Dist. LEXIS 21341 (D. Mass. Sept. 27, 2005)............................7 

Priest v. Zayre, 

118 F.R.D. 552 (D. Mass. 1988)..............................................................................................12 

Smilow v. Southwestern Bell Mobile Sys., 

323 F.3d 32 (1st Cir. 2003)..................................................................................................4, 10 

Stuebler v. Xcelera.com, 

430 F.3d 503 (1st Cir. 2005)................................................................................................2, 10 

Swack v. Credit Suisse First Boston, 

230 F.R.D. 250 (D. Mass. 2005)............................................................................................5, 6 

STATUTES AND RULES

15 U.S.C. § 77k................................................................................................................................1 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 4 of 20
-iii15 U.S.C. § 77l(a)(2)........................................................................................................................1 

15 U.S.C. § 77o................................................................................................................................1 

Federal Rule of Civil Procedure 23 ....................................................................................... passim

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 5 of 20
 1 

 Lead Plaintiff Arkansas Public Employee Retirement System (“APERS” or “Lead 

Plaintiff” or “Proposed Class Representative”), by and through its attorneys, respectfully submits 

this memorandum of law in support of the accompanying motion for class certification. 

I. INTRODUCTION

Lead Plaintiff moves the Court for class certification and to be appointed the 

representative of a plaintiff class (the “Class”), pursuant to Rules 23(a) and 23(b)(3)1 of the 

Federal Rules of Civil Procedure, consisting of: 

all persons or entities who purchased the common stock of GT Solar 

International, Inc. (“GT Solar” or the “Company”) pursuant or traceable to the 

Company’s registration statement filed on Form S-1\A on July 23, 2008 and 

prospectus filed on Form S-1\A on July 24, 2008 (the “Prospectus”) (collectively, 

the “Registration Statement”) issued in connection with GT Solar’s July 24, 2008 

initial public offering (“IPO”).2

Lead Plaintiff purchased GT Solar securities pursuant to or traceable to the Company’s 

Registration Statement, and it brings this action on behalf of itself and similarly situated GT 

Solar stock purchasers for violations of §§ 11, 12(a)(2) and 15 of the Securities Act of 1933, 15 

U.S.C. §§ 77k, 77l(a)(2), and 77o (the “Securities Act”). Plaintiffs’ Consolidated Class Action 

Complaint (“Complaint”) alleges a prototypical class action on behalf of hundreds or thousands 

of investors who, like the Lead Plaintiff, suffered damages as a result of purchasing GT Solar 

stock issued pursuant to Defendants’ materially false and misleading Registration Statement. 3 

 

1

 Lead Plaintiff also seeks an order pursuant to Fed. R. Civ. P. 23(g), appointing the law firm of Cohen 

Milstein Sellers & Toll PLLC as Class Counsel. 

2

 Excluded from the Class are Defendants and their affiliates; members of their immediate families and 

their legal representatives, heirs, successors or assigns; any entity in which Defendants have or had a 

controlling interest; and the current and former officers and directors of the Company. 

3

 Defendants are GT Solar; Thomas Zarrella, J. Bradford Forth, Ernest Godshalk, J. Michal Conaway, 

Fusen Chen, Richard Landers, Robert Woodbury, Jr., Edwin Lewis and Richard Johnson; Credit Suisse 

Securities (USA) LLC, UBS Securities LLC, Banc of America Securities LLC, Deutsche Bank Securities 

Inc., Piper Jaffray & Co. and Thomas Weisel Partners LLC; GT Holdings, GFI Energy Ventures, Oaktree 

Capital Management, OCM/GFI Power Opportunities II, L.P. and OCM/GFI Power Opportunities II 

(Cayman) L.P. 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 6 of 20
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As such, this case readily meets class certification requirements, and, the United States Supreme 

Court, the First Circuit, courts in this District, and numerous other circuit and district courts have 

held that actions for violations of the federal securities laws are properly certified as class 

actions.4

 This is especially true in cases, such as this, which involve claims under the Securities 

Act. See Levitan v. McCoy, No. 00-5096, 2003 U.S. Dist. LEXIS 5078, at *11 (N.D. Ill. Mar. 

28, 2003) (“Courts have repeatedly held that cases like this one, which proceed primarily under 

Section 11 of the 1933 Act, are particularly well-suited to class treatment[.]”); In re Bank One 

Sec. Litig./First Chi. S’holder Claims, No. 00-0767, 2002 U.S. Dist. LEXIS 8709, at *12 (N.D. 

Ill. May 9, 2002) (same).5

Accordingly, Lead Plaintiff respectfully requests that the Court grant its Motion for Class 

Certification. 

II. STATEMENT OF FACTS

A. SUMMARY OF THE COMPLAINT

The first of these consolidated cases was filed on August 1, 2008. On December 22, 

2008, Lead Plaintiff filed the Complaint, which alleges that, in connection with GT Solar’s IPO, 

a false and misleading Registration Statement was filed in violation of the Securities Act. The 

Complaint alleges, inter alia, that the Registration Statement failed to disclose that GT Solar’s 

largest customer, LDK Solar Co., Ltd. (“LDK Solar”), which accounted for 62% of the 

 

4 See, e.g., Basic Inc. v. Levinson, 485 U.S. 224 (1988); Stuebler v. Xcelera.com, 430 F.3d 503, 518 (1st 

Cir. 2005); In re Tyco Int’l, Ltd. Multidistrict Litig., 236 F.R.D. 62, 73 (D.N.H. 2006); Kirby v. Cullinet 

Software, Inc., 116 F.R.D. 303, 311 (D. Mass. 1987) (“In securities fraud cases, the class action device 

has been deemed especially appropriate, and even ‘indispensable’ to protect the small claimants who 

would otherwise as a practical matter be denied relief.”)

5

 Courts routinely grant motions for class certification in Securities Act cases. See., e.g., In re Prestige 

Brands Holdings, Inc., No. 05-6924, 2007 U.S. Dist. LEXIS 66199, at *19 (S.D.N.Y. Sept. 4, 2007); In re 

Reliant Sec. Litig., No. 02-1810, 2005 U.S. Dist. LEXIS 9716, at *38 (S.D. Tex. Feb. 18, 2005); In re PE 

Corp. Secs. Litig., 228 F.R.D. 102, 111 (D. Conn. 2005); Levitan, 2003 U.S. Dist. LEXIS 5078, at *25; In 

re Turkcell Iletisim Hizmetler, 209 F.R.D. 353, 361 (S.D.N.Y. 2002); In re Dreyfus Aggressive Growth 

Mut. Fund Litig., No. 98-4318, 2000 U.S. Dist. LEXIS 13469, at *33 (S.D.N.Y. Sept. 19, 2000). 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 7 of 20
 3 

Company’s revenue during the fiscal year ended March 31, 2008, would likely cease ordering 

GT Solar’s principal product, DSS Furnaces, from GT Solar, and that LDK Solar had decided to 

purchase furnaces from JYT Corporation. ¶ 3.6 On July 25, 2008, one day after the IPO, LDK 

Solar announced that it had entered into a three-year contract to purchase furnaces from JYT 

Corporation. ¶ 4; Ex. A.7

 As a result, GT Solar stock, which was sold in the IPO for $16.50 per 

share, sold as low as $9.30 per share, and closed at $12.59 per share, on July 25, 2008, a drop of 

nearly 24% from the IPO price one day earlier. ¶ 5; Ex. B. On September 22, 2009, this Court 

denied, in its entirety, Defendants’ motion to dismiss the Complaint. Ark. Pub. Emple. Ret. Sys. 

v. GT Solar Int'l, Inc., No. 08-cv-312-JL, 2009 DNH 149, Docket No. 86 (D.N.H. Oct. 7, 2009). 

B. The Proposed Class Representative

Lead Plaintiff APERS is a Pension Trust Fund of the State of Arkansas with 

approximately $4.3 billion of assets serving over 44,000 current and former state public 

employees, including members of the Arkansas state judiciary as reflected in its June 30, 2009 

Annual Financial Report. See Ex. C at 7-8. 

As set forth in the Certification it filed with its motion to be appointed Lead Plaintiff, 

APERS acquired the common stock of GT Solar pursuant to the IPO at the IPO offering price of 

$16.50 per share. See Ex. D. Lead Plaintiff purchased GT Solar securities at artificially inflated 

prices and suffered damages when revelation of the true facts about the Company caused a 

decline in the value of its investments. APERS’ purchases of GT Solar’s securities were 

pursuant to the Registration Statement. 

 

6

 References to ¶__ refer to paragraphs of the Complaint. 

7

 References to Ex. __ refer to Exhibits to the Declaration of Daniel S. Sommers in Support of Lead 

Plaintiff’s Motion for Class Certification, filed herewith. 

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III. THE STANDARDS FOR CLASS CERTIFICATION

 To maintain a class action, the Court must find that the four prerequisites set forth in 

Federal Rule of Civil Procedure 23(a) and at least one of the requirements enumerated in Rule 

23(b) are met. Rule 23(a) provides that one or more members of a class may sue or be sued as 

representative parties of all only if: 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 and defenses of the class; and, 4) 

the representative parties will fairly and adequately protect the interests of the class. In re Tyco 

Int'l, Ltd. Multidistrict Litig., 236 F.R.D. 62, 67 (D.N.H. 2006) (quoting Fed. R. Civ. P. 23(a)); 

see also Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir. 2003). 

 If the party seeking certification satisfies the requirements of Rule 23(a), it must then 

“demonstrate that the class meets one of the criteria outlined in Rule 23(b).” In re Tyco, 236 

F.R.D. at 67 (citing Amchem Prods. v. Windsor, 521 U.S. 591 (1997)); see also In re Boston Sci. 

Corp. Secs. Litig., 604 F. Supp. 2d 275, 280 (D. Mass. 2009). Here, Lead Plaintiff seeks 

certification under Rule 23(b)(3), which requires “that the questions of law or fact common to 

the members of the class predominate over any questions affecting only individual members, and 

that a class action is superior to other available methods for the fair and efficient adjudication of 

the controversy.” Fed. R. Civ. P. 23(b)(3). 

Rule 23(g) further provides that “a court that certifies a class must appoint class counsel,” 

and that such counsel “must fairly and adequately represent the interests of the class.” Because 

the Proposed Class Representative and proposed Class Counsel satisfy all of the prerequisites of 

Rules 23(a), 23(b)(3) and 23(g), Lead Plaintiff’s motion should be granted. 

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IV. THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23 AND SHOULD 

BE PERMITTED TO PROCEED AS A CLASS ACTION

A. The Proposed Class Meets The Requirements of Rule 23(a)

1. The Members Of The Class Are So Numerous That Joinder Of All 

Members Is Impracticable 

 Under Rule 23(a)(1), the proposed class must be so numerous “that joinder of all class 

members is impracticable.” In re Tyco, 236 F.R.D. at 67 (quoting Rule 23(a)). The “numerosity 

requirement is satisfied when the number of potential class members and their geographic 

distribution are sufficiently great that joinder of all plaintiffs is not feasible.” In re Tyco, 236 

F.R.D. at 68 n.2 (citing Andrews v. Bechtel Power Corp., 780 F.2d 124, 131-132 (1st Cir. 1985)). 

As courts in this Circuit have held, “[e]ven if the number of persons who bought stock during the 

class period is unknown, numerosity can be assumed where the number of shares traded is so 

great that common sense dictates the class is very large.” Swack v. Credit Suisse First Boston, 

230 F.R.D. 250, 259 (D. Mass. 2005); see also In re Boston Sci. Corp., 604 F. Supp. 2d at 281. 

The numerosity requirement is satisfied here because the Prospectus reveals that the 

Company issued over 30 million shares pursuant to the IPO. See Ex. E at 2. In addition, trading 

volume of GT Solar shares on the day of the IPO exceeded 20 million shares. See Ex. B. Given 

the foregoing, the proposed class is sufficiently large to make joinder impracticable. Swack, 230 

F.R.D. at 258-59 (“[H]ow many shares of stock were outstanding” and “the average daily trading 

volume during the Class Period, [are] both factors commonly considered by courts when finding 

the numerosity prong satisfied . . . .”). Accordingly, the proposed Class plainly satisfies the 

numerosity requirement of Rule 23. 

2. There Are Common Questions of Law and Fact

The “commonality” provision of Rule 23(a)(2) requires that the allegations of the 

complaint involve common questions of law and fact, “but does not require that every question 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 10 of 20
 6 

be common.” Swack, 230 F.R.D at 259. “The commonality requirement ‘is not a high bar’” and 

“‘will be satisfied if the named plaintiffs share at least one question of law or fact with the 

grievances of the prospective class.’” In re Tyco, 236 F.R.D. at 68 (D.N.H. 2006) (quoting In re 

Chiang, 385 F.3d 256, 265 (3d Cir. 2004). “The test or standard for meeting the Rule 23(a)(2) 

prerequisite is qualitative rather than quantitative; that is, there need be only a single issue 

common to all members of the class.” In re Pharm. Indus. Average Wholesale Price Litig., 230 

F.R.D. 61, 78 (D. Mass. 2005) (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class 

Actions § 3.10 (4th ed. 2002)). 

The commonality requirement of Rule 23(a)(2) is regularly satisfied in the context of 

securities fraud litigation. See, e.g., Kinney v. Metero Global Media, Inc., No. 99-579 ML, 2002 

U.S. Dist. LEXIS 18628, at *13 (D.R.I. Aug. 22, 2002) (holding that allegations of 

misrepresentations and omissions in company’s required filings with the SEC causing 

company’s stock to trade at artificially inflated prices present common questions); In re Tyco, 

236 F.R.D. 62, 68 n.5 (D.N.H. 2006) (“Plaintiffs easily satisfy this requirement because they 

allege that all members of the class were injured as a result of an overarching conspiracy.”); see 

also In re Boston Sci. Corp., 604 F. Supp. 2d at 281. 

Similarly, the commonality requirement is easily satisfied in the instant matter. For 

example, among the questions of law and fact common to the Class are: (i) whether the federal 

securities laws were violated by Defendants’ acts; (ii) whether statements made in the 

Registration Statement misrepresented material facts about the business of GT Solar; and, (iii) to 

what extent the members of the Class sustained damages and the proper measure of damages. 

As such, this action satisfies the commonality requirement of Rule 23(a). 

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3. Lead Plaintiff’s Claims Are Typical Of Those Of The Class 

 The typicality requirement of Rule 23(a)(3) is met “when the [named] plaintiff’s injuries 

arise from the same events or course of conduct as do the injuries that form the basis of the class 

claims,” and “when the plaintiff’s claims and those of the class are based on the same legal 

theory.” Guckenberger v. Boston Univ., 957 F. Supp. 306, 325 (D. Mass. 1997); see also In re 

Lupron® Mktg. and Sales Practices Litig., 228 F.R.D. 75 (D. Mass. 2005). 

“Typicality is not a demanding test.” In re Lupron, 228 F.R.D. at 89; Pettway v. Harmon 

Law Offices, P.C., No. 03-10932, 2005 U.S. Dist. LEXIS 21341, at *32 (D. Mass. Sept. 27, 

2005). As the Court in Lupron explained, “[a] sufficient nexus is established [to show typicality] 

if the claims or defenses of the class and the class representative arise from the same event or 

pattern or practice and are based on the same legal theory.” 228 F.R.D. at 89; see also In re 

Tyco, 236 F.R.D. at 68 n.5 (D.N.H. 2006); In re Boston Sci. Corp., 604 F. Supp. 2d at 282 (D. 

Mass. 2009).8

 

Here, Lead Plaintiff’s claims arise from the same events and are based upon the same 

legal theories as the claims of the absent Class Members. Lead Plaintiff alleges that Defendants 

violated the federal securities laws by disseminating materially false and misleading statements 

in the Registration Statement concerning GT Solar’s business; Lead Plaintiff purchased or 

acquired GT Solar stock pursuant or traceable to the Registration Statement (see Ex. E); and 

Lead Plaintiff was damaged thereby in violation of the Securities Act. In sum, Lead Plainitff, 

 

8

 The Supreme Court explained in Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982): 

The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as 

guideposts for determining whether under the particular circumstances maintenance of a 

class action is economical and whether the named plaintiff’s claim and the class claims 

are so interrelated that the interests of the class members will be fairly and adequately 

protected in their absence. 

Id. at 157 n.13. 

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 8 

like every member of the Class, was damaged by the materially untrue statements in the 

Registration Statement. Accordingly, the claims of the Lead Plaintiff are typical of the Class. 

4. Lead Plaintiff Will Fairly and Adequately Protect the Interests Of 

The Class 

Pursuant to Rule 23(a)(4), class representatives must “fairly and adequately protect the 

interests of the class.” This requirement has two aspects: whether the class representatives have 

conflicting interests with the unnamed class members and whether the named representatives 

will vigorously prosecute the action through qualified counsel. Kinney, 2002 U.S. Dist. LEXIS 

18628, at *15 (citing Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985); see 

also In re Boston Sci. Corp., 604 F. Supp. 2d at 282 (D. Mass. 2009). 

As demonstrated above, Lead Plaintiff’s interests are not antagonistic or in conflict with 

the interests of the other Class members. Lead Plaintiff, like the members of the proposed Class, 

sustained damages as a result of Defendants’ unlawful acts which artificially inflated the price of 

GT Solar stock, and upon disclosure of the truth, caused the drop in the value of the stock and 

damaged the Class. Thus, the interest of the Lead Plaintiff in obtaining the maximum possible 

recovery is therefore coextensive with the interests of all members of the Class. 

Second, Lead Plaintiff – a substantial state-wide public pension fund – understands the 

commitments and fiduciary responsibilities required of a class representative and is willing to 

vigorously prosecute this action. See Ex. D. Lead Plaintiff is represented by counsel who are 

thoroughly experienced in federal securities litigation and have the ability and willingness to 

protect the interests of the Class. Lead Plaintiff selected Cohen Milstein to serve as Lead 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 13 of 20
 9 

Counsel, and the Court approved that choice. Lead Plaintiff has now selected Cohen Milstein to 

serve as Class Counsel.9

Federal Rule of Civil Procedure 23(g) further states that the court certifying a class must 

“appoint class counsel.” Class Counsel “must fairly and adequately represent the interests of the 

Class.” Lead Counsel Cohen Milstein has extensive experience in the areas of securities and 

complex litigation and has successfully prosecuted numerous securities fraud class actions on 

behalf of injured investors. See Ex. F. Moreover, Lead Counsel has already undertaken a 

vigorous prosecution of this action, including conducting an investigation of the claims; filing a 

Consolidated Class Action Complaint; briefing, arguing, and defeating Defendants’ motion to 

dismiss; engaging in discovery and pursuing class certification; briefing and arguing complex 

issues relating to the parallel state court proceeding; and creating a workable protocol for 

coordinating the federal and state proceedings. Thus, under the considerations identified in Fed. 

R. Civ. P. 23(g)(C)(i) – “work counsel has done in identifying or investigating potential claims;” 

“counsel’s experience in handling class actions, other complex litigation, and claims of the type 

asserted in the action;” “counsel’s knowledge of the applicable law;” and “the resources that 

counsel will commit to representing the class” – Lead Counsel is eminently qualified for 

appointment as Class Counsel, and the Court may be assured that the Class will receive a high 

caliber of legal representation. 

Having shown that its interests are not antagonistic to those of the other members of the 

Class and that its counsel is fully qualified to prosecute this action, Lead Plaintiff has 

 

9 In addition, the firm of Bouchard, Kleinman & Wright, P.A. has served as liaison counsel for 

Lead Plaintiff. Bouchard, Kleinman & Wright, P.A., with offices in Manchester and Hampton, 

is extremely familiar with practice in this District and has been involved in other major class 

actions in this District.

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demonstrated its adequacy pursuant to Rule 23(a)(4), and Lead Counsel has demonstrated that it 

is qualified to serve as Class Counsel. 

B. The Requirements Of Rule 23(b)(3) Are Satisfied

 In addition to meeting the prerequisites of Rule 23(a), the present action also satisfies the 

requirements of Rule 23(b), which requires that proposed class representatives establish that: (i) 

common questions of law or fact predominate over individual questions; and, (ii) a class action is 

superior to other available methods of adjudication. Fed. R. Civ. P. 23(b)(3). This inquiry 

appropriately ensures that certification occurs in cases “in which a class action would achieve 

economies of time, effort, and expense, and promote . . . uniformity of decision as to persons 

similarly situated, without sacrificing procedural fairness or bringing about other undesirable 

results.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Adv. Comm. 

Notes, 28 U.S.C. App., p. 697). As discussed above and more fully below, common questions of 

law and fact predominate in this case as all Class members were damaged by Defendants’ false 

and misleading statements, and a class action is the superior and, indeed, the only, method 

available to fairly and efficiently litigate this securities action. 

1. Common Questions Of Law and Fact Predominate 

 “Rule 23(b)(3) requires merely that common issues predominate, not that all issues be 

common to the class.” Smilow, 323 F.3d at 39; see also Amchem, 521 U.S. at 625; Stuebler v. 

Xcelera.com (In re Xcelera.com Sec. Litig.), 430 F.3d 503, 506 (1st Cir. 2005) (The 

predominance “enquiry tests whether proposed classes are sufficiently cohesive to warrant 

adjudication by representation.”). In Amchem, the Supreme Court stated, “[p]redominance is a 

test readily met in certain cases alleging . . . securities fraud . . . .” 521 U.S. at 625. 

Furthermore, “[w]here, as here, common questions predominate regarding liability, then courts 

generally find the predominance requirement to be satisfied even if individual damages issues 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 15 of 20
 11 

remain.” In re Transkaryotic Therapies, Inc. Sec. Litig., 2005 U.S. Dist. LEXIS 29656, at *10 

(quoting Smilow, 323 F.3d at 40); see also In re Tyco, 236 F.R.D. at 71 (“As the First Circuit has 

recognized, classes are routinely certified where common issues predominate even though 

individual issues exist with respect to other matters such as affirmative defenses or damages.”) 

Here, common questions overwhelmingly predominate over any individual issues that 

theoretically might exist. The Complaint alleges that the Registration Statement contained 

materially false and misleading statements in violation of the Securities Act. As such, all of the 

liability issues (e.g., were the statements false and misleading and were the statements material) 

are common to all class members. See In re Constar Int’l Inc. Sec. Litig., 585 F.3d 774, 782 (3d 

Cir. 2009) (“A prima facie case under § 11 is straightforward, requiring only a showing of a 

material misrepresentation or omission from a defendant’s registration statement.”) (citing 

Herman & Maclean v. Huddleston, 459 U.S. 375, 382 (1983)).

If the Lead Plaintiff and each of the class members were to bring individual actions, they 

would each be required to prove the same facts and existence of the same false and misleading 

statements by Defendants to establish liability.10 Accordingly, common issues predominate over 

any individualized issues that may exist. 

 

10 As the Third Circuit has recently explained, it is important to note that unlike a claim under §10(b) of 

the Securities Exchange Act (which is not present in this action): 

a § 11 case [such as the GT Solar action] will never demand individualized proof as to an 

investor’s reliance or knowledge (except where more than twelve months have passed 

since the registration statement became effective). Further, because a misrepresentation is 

material if a reasonable investor would have considered a fact important, the effect of a 

material misrepresentation is felt uniformly across the class of investors, regardless of 

whether the market is efficient. 

In re Constar Int'l Inc. Sec. Litig., 585 F.3d 774, 784 (3d Cir. 2009); see also In re Metro. Sec. Litig., No. 

CV-04-25, 2008 U.S. Dist. LEXIS 100325, at *16 (E.D. Wash. Nov. 25, 2008) (holding that for Section 

11 claims, “plaintiffs do not have to qualify for the Basic presumption [of an efficient market] in order to 

demonstrate predominance under Rule 23(b)(3)”); In re Initial Public Offering Sec. Litig, 243 F.R.D. 79, 

92 (S.D.N.Y. 2007) (holding that for Section 11 claims, market inefficiency does not prevent a finding of 

predominance).

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2. A Class Action Is Superior To Any Other Available Method For 

Resolving This Controversy 

Rule 23(b)(3) also requires that class resolution must be “superior to other available 

methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). The 

superiority inquiry involves a determination as to whether the objectives of the class action 

procedure will be achieved in the particular case and a comparison of alternative mechanisms of 

dispute resolution. “The Rule identifies four factors relevant to this inquiry: (A) the interest of 

members of the class in individually controlling the prosecution or defense of separate actions; 

(B) the extent and nature of any litigation concerning the controversy already commenced by or 

against members of the class; (C) the desirability or undesirability of concentrating the litigation 

of the claims in the particular forum; and (D) the difficulties likely to be encountered in the 

management of a class action.” Fed. R. Civ. P. 23(b)(3)). 

These factors all point convincingly to the superiority of class litigation. Any interest 

individual members of the class may have in controlling the litigation is far outweighed by the 

benefit of distributing the financial burden of the litigation among the class. Kirby, 116 F.R.D. at 

311 (“In securities fraud cases, the class action device has been deemed especially appropriate, 

and even ‘indispensable’ to protect the small claimants who would otherwise as a practical 

matter be denied relief.”); see also In re Boston Sci. Corp., 604 F. Supp. 2d at 287 (“Given the 

size of the proposed class in this case, it is clear that piecemeal adjudication of claims covering 

substantially similar issues would be an inefficient allocation of court resources.”). 

A class action will also facilitate the statutory objective of a fair, orderly, trustworthy and 

reliable securities market. See Priest v. Zayre, 118 F.R.D. 552, 553-554 (D. Mass. 1988) 

(“Courts have expressed a general preference for class certification in securities fraud cases 

based on a policy favoring enforcement of the federal securities laws and recognition of the fact 

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 13 

that class actions may be the only practicable means of enforcing investors’ rights.”) (internal 

citations omitted). 

Moreover, no other federal case, not already consolidated with these, has been 

commenced by members of the class against these defendants alleging these claims.11 This 

forum is also particularly appropriate as it is closest in proximity to defendant GT Solar’s 

corporate headquarters and therefore many of the witnesses. Finally, management of the class 

litigation should not prove especially difficult as securities cases allow for the easy identification 

of the class members. See In re Boston Sci. Corp., 604 F. Supp. 2d at 280 (D. Mass. 2009) 

(“Courts have recognized that class actions may be particularly appropriate in the context of 

securities litigation.”); Kinney v. Metero Global Media, Inc., No. 99-579 ML, 2002 U.S. Dist. 

LEXIS 18628, at *18 (D.R.I. Aug. 22, 2002) (“The desirability and utility of the class action 

device in the context of federal securities law litigation is well established.”) 

In sum, because class actions are a particularly appropriate and desirable means to 

resolve claims based on alleged violations of the securities laws, the proposed class is the 

superior method for adjudicating this dispute. 

V. CONCLUSION

 For the foregoing reasons, Lead Plaintiff requests entry of an Order (1) certifying this 

action as a class action pursuant to Fed. R. Civ. P. 23(b)(3); (2) certifying Lead Plaintiff as a 

representative of the Class; and (3) appointing Cohen Milstein as Class Counsel. 

 

11 To Lead Counsel’s knowledge, no putative Class Member has filed an individual action, and the only 

related unconsolidated class action now pending is the New Hampshire State Court action Hamel v. GT 

Solar International, Inc., No. 08-C-431. The plaintiff in the Hamel Action has agreed to coordinate their 

case with this Action. See November 6, 2009 Further Stipulated [Proposed] Case Management Order and 

Joint Request to Amend Deadlines (attached as Ex. G) and November 13, 2009 Discovery Plan And 

Further [Proposed] Joint Case Management Order (attached as Ex. H); see also November 16, 2009 

Minute Order entering the November 6 and November 13 Stipulated Proposed Orders. 

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 14 

Dated: April 30, 2010 Respectfully submitted, 

 /s/ Kenneth Bouchard 

 Kenneth Bouchard (NH Bar # 51) 

 BOUCHARD, KLEINMAN AND 

 WRIGHT PA 

 1 Merrill Drive, Suite 6 

 Hampton, NH 03842 

 Telephone: (603) 926-9333 

 Facsimile: (603) 929-1221 

 

 Liaison Counsel for Lead Plaintiff 

 /s/ Daniel S. Sommers 

 Daniel S. Sommers (Pro Hac Vice) 

 Matthew K. Handley (Pro Hac Vice) 

 Joshua M. Kolsky 

 COHEN MILSTEIN SELLERS & 

 TOLL PLLC 

 1100 New York Avenue, N.W. 

 West Tower, Suite 500 

 Washington, D.C. 20005-3964 

 Telephone: (202) 408-4600 

 Facsimile: (202) 408-4699 

 Lead Counsel for Lead Plaintiff

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 19 of 20
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CERTIFICATE OF SERVICE

 I hereby certify that on April 30, 2010, copies of the foregoing Lead Plaintiff’s 

Memorandum in Support of Motion for Class Certification were electronically served on counsel 

of record in this matter who are registered with the Court’s ECF filing system through ECF 

notification. 

 /s/ Daniel S. Sommers 

 Daniel S. Sommers (Pro Hac Vice) 

Case 1:08-cv-00312-JL Document 107-1 Filed 04/30/10 Page 20 of 20