By Dorothy Atkins

Law360 (February 11, 2021, 3:22 PM EST) -- A California federal judge called out a DLA Piper attorney Thursday for not wearing a tie during a virtual hearing on Finisar's $6.8 million securities settlement, saying male attorneys have taken the informality of COVID-19-era remote hearings too far while joking, "At least there's not cats on the screen."

The lighthearted discussion about dress etiquette in the age of pandemic-safe virtual court proceedings kicked off a short hearing in which U.S. District Judge Edward Davila gave his final sign-off on Finisar's $6.8 million settlement to resolve a decade-old proposed securities class action that investor Martin Derchi-Russo initially filed in March 2011.

At the start of the Zoom hearing, Judge Davila reacted to the waterfront Zoom background of Finisar Corp.'s counsel, DLA Piper partner David Priebe, asking Priebe if he was at a resort.

The attorney said he was using a Mount Vesuvius Zoom filter, prompting the judge to ask, "They don't wear ties at Mount Vesuvius?"

"Your colleague's office asked me to ask about your tie," the judge joked.

Judge Davila's question prompted Priebe to jump up from his seat, revealing that his blue collared shirt was untucked. The attorney disappeared from the screen, returning moments later with a tie that he quickly wrapped around his neck.

The judge said the hearing participants would wait to observe Priebe's tie tying skills.

"I recognize that the remote technology affords us some latitude, but I do like that if a man appears, to at least have a tie on," the judge told Priebe. 

"Thanks for your indulgence. At least there's not cats on the screen," the judge added, referencing a Texas attorney who went viral on Tuesday after logging into a Zoom hearing unknowingly sporting a cat filter.

Priebe apologized to the judge and, as he tied his tie, he recalled an anecdote of the late Justice John Paul Stevens, who once unwrapped his silk bow tie and retied it on the bench after he was accused of wearing a clip-on. The attorney also said his father, who passed away a few months ago, never knew how to tie a tie.

As Priebe tightened his Windsor knot, Judge Davila again thanked him for putting a tie on, adding, "I didn't mean to make fun of you." Still, Judge Davila observed that holding virtual hearings has brought "some informality" to court proceedings, which the judge said "candidly" he's had to discuss with attorneys.

"It really is entirely focused on one gender," Judge Davila said. "It tends to be focused on men."

Priebe's co-counsel, Shirli Fabbri Weiss, replied that appearing in virtual court proceedings is the only opportunity these days to dress up, which is why she likes it. The judge replied, "And it is the only opportunity for men to get less formalized."

Judge Davila recalled that he recently held a court hearing over Zoom in which a participant was leaning back in his chair with his feet on his desk. Judge Davila said he asked the man if he was hoping the judge would help him identify if there were holes in his shoes that needed to be repaired.

The attorney exchange on appropriate Zoom-era dress preceded a hearing for final approval of Finisar's $6.8 million settlement to resolve an investor's securities class action filed in 2011.

The investor sued after a 2010 conference call in which the Sunnyvale, California-based fiber optic supplier's then-CEO, Eitan Gertel, purportedly made a vague statement about customer inventory levels that allegedly caused a swift rise in the company's stock price.

The suit alleged Gertel's statement gave investors a false sense of reassurance and led to big losses when the company three months later revealed lagging sales in China and that growth would be slower than expected. Gertel made $5 million by selling 200,000 shares at the allegedly inflated prices, and the company raised $118 million from investors, according to the complaint.

After the suit was filed, other similar cases by investors were consolidated before Judge Davila, and he appointed Oklahoma Firefighters Pension and Retirement System as the lead plaintiff and the Abraham Fruchter firm as lead counsel.

In May 2017, the lawsuit survived the dismissal stage after six years of litigation and a trip to the Ninth Circuit. But in 2019, Judge Davila rejected a bid by the investors for class certification for the second time and granted Finisar judgment on the class pleadings.

The investors appealed the ruling to the Ninth Circuit, but before the appellate court decided the matter, the parties reached a settlement in principle.

Under the proposed deal, investors would receive their pro rata share of the settlement, while the attorneys would seek up to $1.7 million in fees and roughly $381,000 in expenses. The investors also asked the judge to vacate his earlier judgment on the class pleadings for the purpose of the settlement.

In October, Judge Davila preliminarily approved the settlement, but asked the investors' counsel why they decided to settle now as opposed to fighting their claims against the II-VI Inc. subsidiary at trial.

At the time, the investors' counsel, Ian D. Berg of Abraham Fruchter & Twersky LLP, said there was no guarantee the appellate court would have reversed the order denying certification, and if the Ninth Circuit affirmed it, the investors would likely recover nothing. He added that depositions still had not been completed, and there were still outstanding questions on liability, so a trial win would be uncertain, particularly given that the case is so old and memories fade.

During Thursday's hearing, Judge Davila signed off on the deal for good, along with the attorney fee request. The judge noted that the fees amounted to 25% of the total settlement, even though the attorneys' so-called lodestar cross-check for the 10 years of litigation was roughly $5.3 million.

"The delta between those two figures is significant," the judge said. "I appreciate the request to remain at the [25%] benchmark."

Judge Davila also asked Berg about the 3% class response rate, calling it "a little low," but Berg explained that the per-share rate is higher than 3%, because most of the class members are institutional investors.

Judge Davila agreed that the settlement was fair, reasonable and adequate, and commended attorneys on both sides for reaching the deal. He added that after 10 years, it's bittersweet that they will no longer appear in his courtroom.

"Having good lawyers in the courtroom is like listening to Mozart," he said. "It's just a real treat, a real joy to have you here."

The investors are represented by Ian D. Berg and Takeo A. Kellar of Abraham Fruchter & Twersky LLP.

The defendants are represented by Shirli Fabbri Weiss and David Priebe of DLA Piper.

The case is In re: Finisar Corp. Securities Litigation, case number 5:11-cv-01252, in the U.S. District Court for the Northern District of California.

--Editing by Marygrace Murphy.

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