# Opinion

> District Court, S.D. New York · May 12, 2026

URL: https://www.frixlaw.com/law-library/cases/11390132

## Case

- **Full name:** Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds, individually and on behalf of all others similarly situated v. Kyndryl Holdings, Inc., et al.
- **Court:** District Court, S.D. New York
- **Decided:** May 12, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

WESTCHESTER PUTNAM COUNTIES
HEAVY & HIGHWAY LABORERS
LOCAL 60 BENEFIT FUNDS, 26-CV-2211 (JPO)
individually and on behalf of all others
similarly situated, MEMORANDUM AND ORDER
Plaintiff,

-v-

KYNDRYL HOLDINGS, INC., et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Before the Court are competing motions to appoint lead plaintiff and lead counsel under
the procedures set forth in the Private Securities Litigation Reform Act of 1995 (the “PSLRA”)
in a putative securities class action against Kyndryl Holdings, Inc. (“Kyndryl”) and its
executives. For the reasons set forth below, the Court appoints International Union of Operating
Engineers, Local No. 793, Members Pension Benefit Trust of Ontario (“Local 793”) as lead
plaintiff and Bernstein Litowitz Berger & Grossmann LLP (“Bernstein Litowitz”) as lead
counsel and denies the motions of Indecap Fonder AB, the Oklahoma Police Pension and
Retirement System, and the West Virginia Investment Management Board.
I. Background
Plaintiff Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit
Funds (“Local 60”), a union entity responsible for providing pension and other benefits for union
members, commenced this action on March 17, 2026. (ECF No. 1 (“Compl.”) ¶ 20.) The
complaint alleges that Kyndryl, a global information technology infrastructure services provider,
and its executive officers manipulated and made material misrepresentations about Kyndryl’s
free cash flow metrics and internal controls, such that Kyndryl’s securities traded at artificially
inflated prices during the Class Period, which ran from August 1, 2024 to February 6, 2026. (Id.
¶¶ 2, 51, 60, 75.) According to the complaint, Kyndryl’s problems first began to emerge on
August 4, 2025, when Kyndryl announced the results of its first fiscal quarter of 2026, which
underperformed analysts’ projections along several metrics. (Id. ¶ 7.) In response, the price of

Kyndryl common stock fell by about 21%. (Id. ¶ 9.) Several months later, on February 9, 2026,
Kyndryl filed a Notification of Late Filing with the Securities and Exchange Commission
(“SEC”), disclosing that its cash management practices and internal controls were being audited
and revealing that it “anticipates reporting material weaknesses in the Company’s internal
control over financial reporting.” (Id. ¶ 11.) On the same day, Kyndryl announced the
departures of its Chief Financial Officer and General Counsel, stated that its Global Controller
would assume a different role in the company, and shared the results of its third fiscal quarter of
2026, which again underperformed analysts’ predictions. (Id. ¶¶ 12-13.) Kyndryl’s common
stock fell by more than 54% following these disclosures. (Id. ¶ 14.)

This is one of two securities class actions filed against Kyndryl. The first, Brander v.
Kyndryl Holdings, Inc., No. 26-CV-782 (E.D.N.Y.), was filed in the Eastern District of New
York on February 11, 2026. On the same day, counsel for the plaintiff in the Brander action
published a notice on Business Wire alerting investors to the lawsuit and informing them of the
sixty-day deadline—i.e., until April 13, 2026—to seek appointment as lead plaintiff. (See ECF
No. 15-3.) The same deadline applies to this action. See Hom v. Vale, S.A., No. 15-CV-9539,
2016 WL 880201, at *1 (S.D.N.Y. Mar. 7, 2016) (“[T]he PSLRA requires that notice be
published in only the first filed action where more than one action is filed ‘on behalf of a class
asserting substantially the same claim or claims[.]’” (quoting 15 U.S.C. § 78u–4(a)(3)(A)(ii))).
Local 60 seeks to represent a class of all persons who purchased or otherwise acquired
Kyndryl securities between August 1, 2024 and February 6, 2026, and were injured by
Defendants’ alleged misrepresentations. (Compl. ¶¶ 1, 69.) In response to the Business Wire
notice, seven putative class members or groups of putative class members filed motions seeking
to be appointed as lead plaintiff. (ECF No. 13 (motion of Henry Mayer); ECF No. 16 (motion of

Indecap Fonder AB and Oklahoma Police Pension and Retirement System); ECF No. 17 (motion
of Donatas Petkevicius); ECF No. 22 (motion of Shyam Lal); ECF No. 26 (motion of Muzaffar
Tanweer and Robert Preston); ECF No. 30 (motion of Local 793); ECF No. 35 (motion of West
Virginia Investment Management Board).) Donatas Petkevicius, Henry Mayer, and Shyam Lal
later withdrew their motions (ECF Nos. 40, 43, 44), and Muzaffar Tanweer and Robert Preston
filed a notice of non-opposition, conceding that they “do not have the ‘largest financial interest’
in this litigation within the meaning of the PSLRA” (ECF No. 46 at 2). The Court therefore
considers only the remaining three competing motions for appointment.
II. Legal Standard
Under the PSLRA, the Court is to appoint as lead plaintiff the member or members of the

purported class who is or are the “most capable of adequately representing the interests of class
members,” referred to in the statute as the “most adequate plaintiff.” 15 U.S.C. § 78u-
4(a)(3)(B)(i). The PSLRA establishes a rebuttable presumption that the “most adequate
plaintiff” is the “person or group of persons” that (1) “has either filed the complaint or made a
motion in response to a notice”; (2) “in the determination of the court, has the largest financial
interest in the relief sought by the class”; and (3) “otherwise satisfies the requirements of Rule 23
of the Federal Rules of Civil Procedure.” Id. § 78u-4(a)(3)(B)(iii)(I). “At this stage of litigation,
Rule 23 demands only that a moving plaintiff make a preliminary showing that the adequacy and
typicality requirements have been met.” In re Kirkland Lake Gold Ltd. Sec. Litig., No. 20-CV-
4953, 2020 WL 10692524, at *1 (S.D.N.Y. Sept. 24, 2020) (cleaned up).
Once the Court identifies a presumptive lead plaintiff, the presumption “may be rebutted
only upon proof by a member of the purported plaintiff class that the presumptively most
adequate plaintiff . . . will not fairly and adequately protect the interests of the class; or . . . is

subject to unique defenses that render such plaintiff incapable of adequately representing the
class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). “The proof needed to rebut the presumption need not
establish a plaintiff’s inadequacy with absolute certainty; instead it is enough that it presents a
colorable risk of inadequacy.” Batter v. Hecla Mining Co., No. 19-CV-05719, 2020 WL
1444934, at *7 (S.D.N.Y. Mar. 25, 2020) (cleaned up). “Where there is at least a potential that
the presumptively most adequate lead plaintiff will be subject to unique defenses and will not
fairly and adequately protect the interests of the class[,] disqualification is appropriate.” Id.
(quotation marks omitted).
III. Discussion
A. Presumptive Lead Plaintiffs
The three remaining motions for lead plaintiff are those filed by Indecap Fonder AB

(“Indecap”) and the Oklahoma Police Pension and Retirement System (together, the
“Institutional Investors”), the West Virginia Investment Management Board (the “WVIMB”),
and Local 793.
The Institutional Investors are the presumptive lead plaintiffs. They filed a timely motion
to be appointed lead plaintiffs, have the largest financial interest, and have made a preliminary
showing that they satisfy the typicality and adequacy requirements of Rule 23.
1. Notice
All putative lead plaintiffs satisfy the first requirement, since each has submitted a timely
motion for lead plaintiff status. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(aa).
2. Financial Interest
“In determining who has the largest financial stake in the litigation, courts in this Circuit
have traditionally applied a four-factor test, first set forth in Lax v. First Merchants Acceptance

Corp., No. 97 Civ. 2715 (DHC), 1997 WL 461036, at *5 (N.D. Ill. Aug. 11, 1997).” In re
Hebron Tech. Co., Ltd. Sec. Litig., No. 20-CV-4420, 2020 WL 5548856, at *4 (S.D.N.Y. Sept.
16, 2020). Those Lax factors include:
(1) the total number of shares purchased during the class period;
(2) the net shares purchased during the class period (in other words, the difference
between the number of shares purchased and the number of shares sold during the
class period);
(3) the net funds expended during the class period (in other words, the difference
between the amount spent to purchase shares and the amount received for the sale
of shares during the class period); and
(4) the approximate losses suffered.

Id. (quotation marks omitted). “Of these factors, courts have consistently held that the
fourth, the magnitude of the loss suffered, is most significant.” Id.; see also Foley v.
Transocean Ltd., 272 F.R.D. 126, 128 (S.D.N.Y. 2011) (“[I]n determining the largest
financial interest, most courts simply determine which potential lead plaintiff has suffered
the greatest total losses.” (quotation marks omitted)).
The Institutional Investors have the largest financial stake of the three movants: They
sustained approximately $6,455,772 in losses during the Class Period under a “last-in-first-out,”
or “LIFO,” calculation1 (ECF No. 18 at 11), compared to the approximately $4.17 million lost by
0F
WVIMB (ECF No. 36 at 5; ECF No. 37-3) and $3.3 million lost by Local 793 (ECF No. 31 at 8;
ECF No. 32-2).
3. Rule 23 Requirements
“[A]s part of a PSLRA lead plaintiff motion, the moving plaintiff must make only a
preliminary showing that the adequacy and typicality requirements under Rule 23 have been
met.” Afr. v. Jianpu Tech. Inc., No. 21-CV-1419, 2021 WL 1999467, at *3 (S.D.N.Y. May 19,
2021) (quotation marks omitted). “Movants can demonstrate typicality by showing that their
claims arise from the same conduct from which the other class members’ claims and injuries
arise, and they can demonstrate adequacy if they (1) have no conflict of interest with the other
members of the class, (2) have sufficient interest in the outcome of the case, and (3) have
selected counsel that is qualified, experienced, and generally able to conduct the litigation in
question.” May v. Barclays PLC, No. 23-CV-2583, 2023 WL 5950689, at *5 (S.D.N.Y. Sept.
13, 2023) (cleaned up).
The Institutional Investors have made this preliminary showing. Their claims “arise from

the same conduct from which the other class members’ claims and injuries arise,” Li Hong
Cheng v. Canada Goose Holdings Inc., No. 19-CV-8204, 2019 WL 6617981, at *3 (S.D.N.Y.
Dec. 5, 2019) (quotation marks omitted), and they argue, as do the other putative class members,
that (1) they purchased Kyndryl securities during the Class Period (2) at prices artificially
inflated as a result of Defendants’ misconduct, and (3) suffered losses as a result. (ECF No. 18
at 12.) There is no suggestion of any actual or potential conflict of interest between the

1 The Court adopts the parties’ losses calculated under the LIFO method. See Richman v.
Goldman Sachs Grp., Inc., 274 F.R.D. 473, 476 (S.D.N.Y. 2011) (“Southern District of New
York courts have a very strong preference for the LIFO method in calculating loss.”).
Institutional Investors and other class members, they have a significant financial stake in the
outcome of the case, and they have proposed as lead counsel Saxena White, a law firm with a
strong track record of achieving substantial recoveries on behalf of investor classes. (See ECF
No. 18 at 16-18.) The Court therefore concludes that the Institutional Investors are the
presumptive lead plaintiffs in this case.

B. Rebuttal
This, however, does not end the inquiry. As noted above, the presumption that a movant
should be lead plaintiff “may be rebutted [] upon proof by a member of the purported plaintiff
class that the presumptively most adequate plaintiff . . . will not fairly and adequately protect the
interests of the class; or . . . is subject to unique defenses that render such plaintiff incapable of
adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). As Local 793 and
WVIMB both point out, Indecap sold all of its Kyndryl common stock by December 19, 2025—
before Kyndryl filed a Notification of Late Filing with the SEC and made the announcements
that tipped investors off to its financial troubles on February 9, 2026. (Compl. ¶¶ 10-13; ECF
No. 20-2 at 4.) This renders Indecap vulnerable to unique defenses compared to other putative

lead plaintiffs because, if the February 9, 2026 disclosure is deemed to be the only operative
disclosure, Indecap would have no recoverable losses to recoup in the lawsuit. (ECF No. 49 at
7.)
Indecap retorts that the complaint has adequately pleaded that Kyndryl’s statements on
August 4, 2025, which revealed that the company had underperformed along some metrics in the
first fiscal quarter of 2026, serve as a partial corrective disclosure, and so Indecap’s recoverable
losses accrued from that day until it sold its Kyndryl shares on December 19, 2025. (Compl. ¶ 7;
ECF No. 53 at 10.) But this is belied by the complaint itself, which describes the August 4, 2025
statements as “materially false and/or misleading” (Compl. ¶ 60), and therefore part of the
alleged ongoing fraud, rather than a partial corrective disclosure that alerted investors to
Kyndryl’s potential misconduct. Cf. In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29,
41 (2d Cir. 2009) (“Plaintiffs cannot have it both ways. They cannot allege that Defendants
made certain misstatements, namely, that [Defendant] was doing well compared to its
competitors, and simultaneously argue that the misstatement itself constituted a corrective

disclosure[.]”). In any event, the Court need not determine at this juncture whether the August 4,
2025 statements served as a partial corrective disclosure. All that is required to disqualify a
putative class leader is “a potential that the presumptively most adequate lead plaintiff will be
subject to unique defenses.” Batter, 2020 WL 1444934, at *7 (emphasis added and quotation
marks omitted). “This approach protects members of the putative class, because even ultimately
unsuccessful unique defenses may divert attention from the substance of the basic claim, and
class members are entitled to be represented by someone unhindered by such distractions.” In re
Hebron Tech., 2020 WL 5548856, at *7 (quotation marks omitted).
The Court concludes that Indecap’s disposal of all of its Kyndryl common stock before

the February 9, 2026 disclosure renders it atypical and thus precludes it from serving as lead
plaintiff for the class. “[Indecap’s] claims, unlike those of the other leadership candidates and
the class as a whole, rely on a theory that [Kyndryl’s] alleged fraud was apparent, and caused
shareholder losses, well before the [February 9, 2026 disclosures].” Lee v. iQIYI, Inc., No. 20-
CV-1830, 2020 WL 6146862, at *2 (E.D.N.Y. Oct. 20, 2020). As other courts in this circuit
have determined on analogous facts, this “may subject [Indecap] to uniquely applicable defense
arguments and even undermine the claims of other class members who did not sell their
[Kyndryl] shares earlier.” Id. (disqualifying a putative leader of the class because it had sold all
of its stock before the primary corrective disclosure); see also Jiang v. Chirico, No. 23-CV-1258,
2024 WL 967084, at *9 n.7 (S.D.N.Y. Mar. 5, 2024) (same); Bensley v. FalconStor Software,
Inc., 277 F.R.D. 231, 241 (E.D.N.Y. 2011) (same).2
1F
Absent Indecap, the Oklahoma Police Pension and Retirement System has sustained
$735,400.07 in losses during the Class Period. (ECF No. 20-3 at 5.) Because this loss amount is
eclipsed by Local 793 and WVIMB’s respective losses, the Institutional Investors are
disqualified as lead plaintiffs in this action. Cf. Pipefitters Loc. No. 636 Defined Ben. Plan v.
Bank of Am. Corp., 275 F.R.D. 187, 191 (S.D.N.Y. 2011) (disqualifying joint movants where,
absent one movant, the other “no longer ha[d] the largest financial interest in this action”).3
2F
C. WVIMB
The movant with the next-largest LIFO loss is WVIMB at approximately $4.17 million.
(ECF No. 37-3 at 3.) The Institutional Investors and Local 793, however, contend that WVIMB
should be precluded from serving as lead plaintiff because it “is a net gainer in Kyndryl stock
during the Class Period and, as a result, is atypical of other members of the Class.” (ECF No. 49
at 19; see also ECF No. 51 at 14.) Specifically, although WVIMB spent approximately $14.5
million purchasing Kyndryl common stock during the Class Period, its Certification shows that it
received more than that amount—approximately $14.9 million—in proceeds from its Class
Period sales of Kyndryl stock at inflated prices. (ECF No. 49 at 19; ECF No. 37-2; ECF No. 52-

2 The fact that the complaint in the other related class action currently pending against Kyndryl,
Brander v. Kyndryl Holdings, Inc., No. 26-CV-782 (E.D.N.Y.), does not even mention the
August 4, 2025 statements as relevant misrepresentations or disclosures also weighs against
Indecap. (See generally ECF No. 20-1.) This Court has previously observed that, were a
putative lead plaintiff to rely exclusively on disclosures that predated those at issue in a related
case—as is the posture here—“the Court might have concerns about [its] adequacy to serve as
lead plaintiff.” Glavan v. Revolution Lighting Techs., Inc., No. 19-CV-2308, 2019 WL 3406582,
at *5 n.8 (S.D.N.Y. July 29, 2019).
3 Because the Court concludes that the Institutional Investors are ineligible to serve as lead
plaintiffs due to Indecap’s disposal of all of its Kyndryl holdings before February 9, 2026, it does
not reach WVIMB’s arguments about Indecap’s standing. (See ECF No. 47 at 11-17.)
1 at 3.) Those $14.9 million in proceeds, which are derived from common stock that WVIMB
held at the beginning of the Class Period, were properly excluded under a LIFO loss analysis as
“opening balance” shares, but are nonetheless relevant for purposes of assessing whether
WVIMB is subject to unique defenses. (See ECF No. 51 at 16, 18.) See Plymouth Cnty. Ret.
Sys. v. Apache Corp., 566 F. Supp. 3d 712, 719 (S.D. Tex. 2021) (“LIFO losses are completely

irrelevant to the net gainer analysis,” as “‘[t]he purpose of isolating the calculation of net sales
and net gains to the Class Period is to determine whether a party potentially benefitted from the
fraud’” (quoting Perlmutter v. Intuitive Surgical, Inc., No. 10-CV-03451, 2011 WL 566814, at
*9 (N.D. Cal. Feb. 15, 2011))).
The Court is persuaded that WVIMB’s status as a “net gainer” renders it atypical, thereby
disqualifying it from representing the class. “Courts regularly hold that plaintiffs who are net
sellers and/or net gainers may be subject to unique defenses because they may have benefitted by
selling pre-Class Period shares at allegedly inflated prices during the Class Period.” Doshi v.
Gen. Cable, No. 21-CV-7025, 2017 WL 5178673, at *3 (E.D. Ky. Nov. 7, 2017) (collecting

cases); see also In re Cardinal Health, Inc. Sec. Litig., 226 F.R.D. 298, 308 (S.D. Ohio 2005)
(“[C]ourts usually reject these so-called net gainers as lead plaintiffs, opting instead for net losers
that will have less trouble proving damages.”). Unlike the other putative lead plaintiffs, WVIMB
arguably benefited from Defendants’ fraud by selling Kyndryl stock at inflated prices during the
Class Period for a nearly $400,000 profit, which subjects it to unique defenses as to damages.
(See ECF No. 52-1 at 3.) See In re Refco Inc. Sec. Litig., No. 08-CV-3065, 2013 WL 4078410,
at *2 (S.D.N.Y. Aug. 2, 2013) (“As a general rule, plaintiffs cannot claim damages where the
same fraud alleged to be the cause of a loss also permitted a countervailing gain.”).
WVIMB argues in response that the case law is in fact narrower than the competing
movants suggest, and cautions against appointing only movants who are both “net gainers” and
“net sellers,” or parties who sell more shares than they bought during the Class Period. (ECF
No. 56 at 8.) WVIMB contends that it is not a net seller because it purchased more shares than it
sold during the Class Period, and that it is not a net gainer because, under the PSLRA, 15 U.S.C.

§78u-4(e)(1), and Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005), any loss calculation must
account for what the plaintiff paid for the security, rather than simply totaling profits and losses
over the Class Period and focusing on the difference, as other courts have done. (Id. at 8-11.)
See, e.g., Perlmutter, 2011 WL 566814, at *9 (stating that total net expenditures are “calculated
by looking at the total cash outlays on [Defendant’s] stock during the Class Period and
subtracting any cash receipts during the same period”); City of Omaha Police & Firefighters Ret.
Sys. v. Cognyte Software Ltd., No. 23-CV-1769, 2023 WL 6458930, at *6 (S.D.N.Y. Oct. 4,
2023) (defining a “net gainer” as someone who “earned more proceeds than it spent during the
Class Period”). Under the PSLRA and Dura methodologies, WVIMB argues, it has

demonstrated a substantial recoverable loss. (ECF No. 56 at 9-11.)
This argument, however, goes to the particulars of and differences between various loss
calculation methodologies, and foreshadows precisely the kind of squabbles about damages that
would “divert attention from the substance of the basic claim” should WVIMB be appointed lead
plaintiff. In re Hebron Tech., 2020 WL 5548856, at *7 (quotation marks omitted). Whether
WVIMB should be considered a net gainer by some calculations or a net loser by others is also a
damages question that, of the putative class leaders, snags only WVIMB. This weighs against its
appointment as class plaintiff. Moreover, though WVIMB is correct that the relevant case law
largely cautions against appointing net gainers who are also net sellers, this does not immunize
from unique defenses net gainers who are not net sellers. The fact that WVIMB sold fewer
shares than it purchased during the Class Period—and was therefore not a net seller—does not
alter the fact that, by certain calculations, it profited from the sale of Kyndryl stock at allegedly
inflated prices during that same timeframe.
At base, “[t]he purpose of isolating the calculation of net sales and net gains to the Class

Period is to determine whether a party potentially benefitted from the fraud.” Perlmutter, 2011
WL 566814, at *9. Here, as in Perlmutter, WVIMB “purchased [Kyndryl] stock prior to the
Class Period . . . at fair market value” and then “sold it during the Class Period . . . at
fraudulently inflated prices.” Id. “As a result, instead of being injured by the fraud on these
sales,” there is a plausible argument that WVIMB “actually benefitted from the fraud.” Id.
Because this subjects WVIMB to unique defenses related to damages, the Court declines to
appoint WVIMB lead plaintiff.
D. Local 793
That leaves only one putative class leader: Local 793. The sole challenge to Local 793 is
levied by the Institutional Investors, who contend that Local 793 is atypical because it purchased

nearly 80% of its Kyndryl common stock after the purported partial corrective disclosures on
August 4, 2025. (ECF No. 51 at 20-21; see ECF No. 52-8.) As previously discussed, however,
it is unclear whether the August 4, 2025 statements are properly pleaded as a partial corrective
disclosure. Nor were Defendants’ statements on August 4, 2025—which revealed only that
Kyndryl had underperformed by some analysts’ projections and which said nothing about
Kyndryl’s deficient cash management practices or internal controls—so obviously corrective that
they indicate Local 793 purchased most of its Kyndryl shares regardless of the Defendants’
purported misrepresentations, as the Institutional Investors suggest. (ECF No. 51 at 23.)
Even assuming arguendo that Defendants’ August 4, 2025 statements qualify as a partial
corrective disclosure, the Institutional Investors would not succeed on this objection. Courts
have consistently declined to disqualify a putative lead plaintiff for making stock purchases after
a partial corrective disclosure, particularly where that partial disclosure may not have made class
members “actually aware of the fraud.” In re Tronox, Inc. Sec. Litig., 262 F.R.D. 338, 346

(S.D.N.Y. 2009) (declining to disqualify putative lead plaintiff who first purchased the
defendant’s stocks after a partial corrective disclosure); see also Goldenberg v. NeoGenomics,
Inc., No. 22-CV-10314, 2023 WL 6389101, at *5 (S.D.N.Y. Oct. 2, 2023) (same); In re
Comverse Tech., Inc. Sec. Litig., No. 06-CV-1825, 2008 WL 820015, at *3 (E.D.N.Y. Mar. 25,
2008) (same). Defendants’ August 4, 2025 statements were not “as a matter of law necessarily
sufficient to counter-balance effectively [their] previous misleading statements.” In re Comverse
Tech., Inc. Sec. Litig., 2008 WL 820015, at *3 (quotation marks omitted). And unlike the
putative lead plaintiffs in those cases, who first purchased the defendant’s stock after a partial
corrective disclosure—thus rendering them potentially atypical compared to other class

members—Local 793 held a substantial amount of Kyndryl stock for the entire duration of the
Class Period.
For these reasons, the Institutional Investors’ objection is unavailing. Local 793 has filed
a timely motion in response to the Business Wire notice, has the next largest financial stake in the
case following the disqualifications of the Institutional Investors and WVIMB, and “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). Local 793 asserts the same claims as other class members, has no actual or
potential conflict of interest with other class members, has a significant stake in the outcome of
the class action, and has, as discussed below, selected a highly qualified law firm to serve as lead
counsel.
Accordingly, the Court appoints Local 793 as lead plaintiff.
IV. Appointment of Lead Counsel
Under the PSLRA, the lead plaintiff is entitled, “subject to the approval of the court, [to]
select and retain counsel to represent the class.” 15 U.S.C. § 78u-4(a)(3)(B)(v). Local 793,
which the Court has now appointed lead plaintiff, has chosen Bernstein Litowitz to serve as lead
counsel. (ECF No. 31 at 11.) Bernstein Litowitz has extensive experience in securities class
actions (see id.), and no class member has offered any reason why the firm would be ill-equipped
to act as lead counsel in this action. This Court therefore concludes, as have other courts in this
District, that Bernstein Litowitz is “well-qualified to serve as lead counsel.” Jn re Rsrv. Fund
Sec. & Derivative Litig., No. 08-CV-8060, 2009 WL 10467937, at *5 (S.D.N.Y. Aug. 26, 2009).
V. Conclusion
For the foregoing reasons, the Court appoints International Union of Operating
Engineers, Local No. 793, Members Pension Benefit Trust of Ontario as lead plaintiff and
Bernstein Litowitz as lead counsel. The parties are directed to confer and jointly file a proposed
schedule for the filing of any amended complaint and briefing schedule for any motion to
dismiss within fourteen days of the date of publication of this Memorandum and Order.
The Clerk of Court is directed to close the motions at Docket Numbers 13, 16, 17, 22, 26,
30, and 35.
SO ORDERED.
Dated: May 12, 2026
New York, New York T. PAUL OETKEN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11390132. Public record. Not legal advice.