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Willis v. Big Lots, Inc.

United States District Court, S.D. Ohio, Eastern Division

June 16, 2017

ALAN WILLIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
BIG LOTS, INC., et al., Defendants.

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants' Motion for a Protective Order Precluding the Deposition of David J. Campisi. (Doc. 94). For the reasons that follow, Defendants' Motion is DENIED.

         I. BACKGROUND

         This is a securities class action in which Plaintiffs allege that Defendants unlawfully inflated the value of Big Lots stock during the period from March 2, 2012 to August 23, 2012 by concealing the company's true financial condition. Plaintiffs seek to depose David J. Campisi (see Doc. 96-3 (deposition notice)), Big Lots' current President and Chief Executive Officer (“CEO”) who joined the company on May 3, 2013, and became a Director on May 30, 2013. Plaintiffs have agreed to limit the deposition to three hours at a location and time of Mr. Campisi's choosing, and seek three general categories of information.

         The first category of information Plaintiffs seek from Mr. Campisi concerns the firing or departure of individual Defendants and other key Big Lots executives. More specifically, Plaintiffs seek information on:

• Mr. Campisi's firing of Big Lots' General Counsel Defendant Charles W. Haubiel II who is alleged to have sold personally and illegally $2.5 million worth of Big Lots stock and presided over sale of $33 million worth of stock by other insiders while charged with administering Big Lots' insider trading policies;
• Mr. Campisi's firing of Chief Financial Officer Defendant Joe Cooper, who is alleged to have sold illegally $3.1 million worth of Big Lots stock;
• Mr. Campisi's firing of Senior Marketing Executive Rob Claxton who is alleged to have sold illegally $2.4 million worth of Big Lots stock;
• Mr. Campisi's knowledge of the retirement of former Merchandising Department head John Martin, who is alleged to have sold illegally over $4 million worth of Big Lots stock; and
• Mr. Campisi's succession of former CEO Defendant Steven S. Fishman at a time when Big Lots had been notified about various investigations into insider trading.

(Doc. 104 at 6-10).

         The second category of information concerns Mr. Campisi's knowledge of Big Lots' operations during or immediately following the class period. Plaintiffs allege that the Board of Directors hired Mr. Campisi to replace Mr. Fishman and “turnaround the Company's poor performance during the Class Period and the second half of 2012.” (Id. at 10). To that end, Plaintiffs seek information on Mr. Campisi's knowledge of class-period strategies (including merchandising strategies), sales trends, and personnel, and changes he made based on that knowledge. (Id. at 10-12). Plaintiffs also wish to inquire about Mr. Campisi's decision to undertake a 2013 assessment concerning Big Lots' culture during the class period and his “takeaways” and the “resulting changes” at Big Lots. (Id.).

         The third category of information concerns what Plaintiffs refer to as the Special Committee and Defendants refer to as the Demand Committee formed in March 2013, which Plaintiffs contend “investigated many of the same facts underlying this litigation….” (Id. at 12). Plaintiffs explain that Mr. Campisi “occupied the unique role” of being “the only Big Lots director who neither was on the Special Committee nor a defendant in the underlying derivative litigation” in September 2013, when Big Lots' Board of Directors adopted the Committee's recommendation that no further action be taken. (Id.). Plaintiffs also seek Mr. Campisi's perspective on the Special Litigation Committee formed in August 2016. (Id. at 12-13).

         On May 15, 2017, Defendants filed a Motion for a Protective Order precluding Mr. Campisi's deposition. (Doc. 94). That Motion is now ripe for ...


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