Roberto Cohen v. Usdc-Casj ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE ROBERTO COHEN, 
Petitioner,
v.
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
CALIFORNIA,
Respondent,
LISA MILLER, NEW JERSEY No. 09-70378
CARPENTERS PENSION AND ANNUITY
FUND, DOUGLAS DEPIES, PATRICK D.  D.C. No.
08-CV-04260
JERMYN, ALEXANDER POLITZER, OPINION
HARMIK KAZANCHIAN, IBEW LOCAL
640/ARIZONA CHAPTER NECA
PENSION TRUST FUND, THE FRANKS
GROUP, CITY OF PONTIAC GENERAL
EMPLOYEES RETIREMENT SYSTEM,
NVIDIA CORP., JEN-HSUN HUANG
and MARVIN D. BURKETT.
Real Parties in Interest.

On Petition for Writ of Mandamus to the
United States District Court for the
Northern District of California.
D.C. No. 08-CV-04260.
James Ware, District Judge, Presiding
Argued and Submitted
September 1, 2009—San Francisco, California
Filed November 5, 2009
14909
14910 COHEN v. UNITED STATES DISTRICT COURT
Before: Betty B. Fletcher and Andrew J. Kleinfeld, Circuit
Judges, and Kevin T. Duffy,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Kevin T. Duffy, Senior United States District Judge for
the Southern District of New York, sitting by designation.
14912 COHEN v. UNITED STATES DISTRICT COURT
COUNSEL
Michael F. Ram, Levy, Ram & Ollson LLP, San Francisco,
California and Kim E. Miller, Kahn Gauthier Swick, LLC,
New York, New York, for the petitioner.
COHEN v. UNITED STATES DISTRICT COURT 14913
Jonathan K. Levine and Aaron M. Sheanin, Girard Gibbs
LLP, San Francisco, California, and Ralph Stone and Thomas
G. Ciarlone, Jr., Shalov Stone Bonner & Rocco LLP, New
York, New York, for Real Parties in Interest Lisa Miller and
the Depies Group.
OPINION
B. FLETCHER, Circuit Judge:
Petitioner Roberto Cohen petitions for a writ of mandamus
vacating the district court’s December 23, 2008, order to the
extent that it appointed Girard Gibbs LLP as co-lead counsel
and requiring the district court to appoint Kahn Gauthier
Swick, LCC, as co-lead counsel. We grant the petition for a
writ of mandamus in part and order the district court to vacate
its order appointing Girard Gibbs LLP as co-lead counsel.
FACTS AND PROCEDURAL BACKGROUND
This case presents the issue of whether the district court has
authority to select lead counsel under the Private Securities
Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-
4.
The underlying litigation is a consolidated putative securi-
ties fraud class action brought by investors who purchased
NVIDIA Corporation securities between November 8, 2007
and July 2, 2008. In September of 2008, Lisa Miller filed the
first putative securities fraud class action against NVIDIA,
which the district court consolidated with two other actions.
The Complaint alleges, among other things, that NVIDIA
fraudulently concealed from investors the use of flawed mate-
rials and processes in producing certain products, and that the
stock price substantially declined following the disclosure of
these facts.
14914 COHEN v. UNITED STATES DISTRICT COURT
Following consolidation, seven purported class members or
groups of class members filed motions to be appointed lead
plaintiff and for approval of their choice of lead counsel.
Among these were Roberto Cohen, who selected Kahn Gau-
thier Swick, LLC (“KGS”) as his choice for lead counsel;
New Jersey Carpenters Pension and Annuity Funds (“New
Jersey Carpenters”), which selected Milberg LLP as its choice
for lead counsel; and a group consisting of Douglas Depies,
Jerrold Engber, Geoffrey James, Chester Chow, and
Kumaraswamy Krishnamurthy (collectively the “Depies
Group”) which selected Girard Gibbs LLP (“Girard Gibbs”)
and Shalov Stone Bonner & Rocco LLP as their choice for
co-lead counsel.
The district court, in an order dated December 23, 2008,
(“December Order”) appointed lead plaintiff and lead counsel.
The PSLRA creates a rebuttable presumption that the most
adequate plaintiff—whom the court must appoint as the lead
plaintiff—is the person or group that meets the following
three requirements: “(a) has either filed the complaint or made
a motion in response to the published notice; (b) in the deter-
mination of the court, has the largest financial interest in the
relief sought by the class; and (c) otherwise satisfies the
requirements of Rule 23 of the Federal Rules of Civil Proce-
dure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). The PSLRA further
provides that the lead plaintiff “shall, subject to the approval
of the court, select and retain counsel to represent the class.”
Id. § 78u-4(a)(3)(B)(v). After applying two separate methods
to determine the plaintiff with the largest financial stake in the
litigation, the court appointed Cohen and New Jersey Carpen-
ters as co-lead plaintiffs. The district court appointed Milberg
LLP and Girard Gibbs as co-lead counsel, finding “[u]pon
review of each firm’s resume, . . . [and] given each firm’s
experience with similar actions,” these firms were “the most
qualified counsel for this case.”
On January 8, 2009, Cohen requested leave to file a motion
for reconsideration of the court’s December Order or, in the
COHEN v. UNITED STATES DISTRICT COURT 14915
alternative, application for an order certifying interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). Cohen argued that the
district court’s appointment of Girard Gibbs, the Depies
Group’s choice for lead counsel, was contrary to the PSLRA
and In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002), because
it denied him his right, as lead plaintiff, to select counsel for
the class. The Depies Group also submitted a motion for leave
to file a motion for reconsideration and/or clarification of the
December Order in which they argued 1) the district court
should deny Cohen’s motion and 2) if the district court autho-
rized Cohen’s motion for reconsideration it should authorize
the Depies Group to challenge the appointment of lead plain-
tiff. In an order dated January 23, 2009 (“January Order”), the
district court denied these motions. The district court found
that “In re Cavanaugh does not specify the terms on which a
court may refuse to approve a lead plaintiff’s selection of
counsel” and that “[u]nder the express language of the
PSLRA, the Court has the discretion not to appoint a lead
plaintiff’s choice of counsel.”
Cohen filed a petition for writ of mandamus seeking to
vacate the December Order to the extent it appointed Girard
Gibbs as co-lead counsel and to compel the district court to
appoint KGS. The Real Parties in Interest Lisa Miller and the
Depies Group filed a response opposing the petition and argu-
ing that if the petition is granted the proper remedy is to
remand to the district court with instructions to appoint the
Depies Group as lead plaintiff.
DISCUSSION
I. Cohen’s Petition for Writ of Mandamus
We have authority to issue a writ of mandamus under the
“All Writs Act,” 28 U.S.C. § 1651. However, “the remedy of
mandamus is a drastic one . . . [and] only exceptional circum-
stances amounting to a judicial ‘usurpation of power’ will jus-
tify invocation of this extraordinary remedy.” Bauman v. U.S.
14916 COHEN v. UNITED STATES DISTRICT COURT
Dist. Court, 557 F.2d 650, 654 (9th Cir. 1977) (quoting Kerr
v. U.S. Dist. Court, 426 U.S. 394, 402 (1976)). Although we
determine de novo whether the writ should issue, we must be
firmly convinced that the district court has erred. Valenzuela-
Gonzalez v. U.S. Dist. Court, 915 F.2d 1276, 1279 (9th Cir.
1990).
[1] We decide whether to issue the writ under the factors
laid out in Bauman, analyzing whether (1) the party seeking
the writ has no other adequate means, such as direct appeal,
to attain the relief he or she desires; (2) the petitioner will be
damaged or prejudiced in a way not correctable on appeal; (3)
the district court’s order is clearly erroneous as a matter of
law; (4) the district court’s error is an oft-repeated error, or
manifests a persistent disregard of the federal rules; and (5)
the district court’s order raises new and important problems,
or issues of law of the first impression. Bauman, 557 F.2d at
654-55. No single Bauman factor is determinative in every
case nor must all five factors be present to grant the writ.
Valenzuela-Gonzalez, 915 F.2d at 1279.
A. The Bauman Factors
[2] We will begin by analyzing the district court’s opinion
for clear error, as this factor is “highly significant” and failure
to show clear error may be dispositive of the petition. Cole v.
U.S. Dist. Court, 366 F.3d 813, 820 (9th Cir. 2004); Z-Seven
Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215,
1219-1220 (9th Cir. 2000). The clear error standard is signifi-
cantly deferential and is not met unless the reviewing court is
left with a “definite and firm conviction that a mistake has
been committed.” Concrete Pipe & Prods. v. Constr. Labor-
ers Pension Trust, 508 U.S. 602, 623 (1993); see also De-
George v. U.S. Dist. Court, 219 F.3d 930, 936 (9th Cir. 2000)
(applying this standard of review to a district court’s statutory
interpretation).
COHEN v. UNITED STATES DISTRICT COURT 14917
[3] The Depies Group argues that the district court acted
within its discretion because the PSLRA leaves the lead plain-
tiff’s selection of counsel subject to the approval of the dis-
trict court. They contend that the district court disapproved
Cohen’s selection of KGS and, because of that disapproval,
and because the PSLRA does not explicitly provide proce-
dures for the district court to follow after disapproving the
lead plaintiff’s choice of counsel, the district court acted
within its authority by itself selecting class counsel. The dis-
trict court appears to have relied on a similar justification for
its decision in its January Order.1 This argument is untenable.
Although it cannot be contested that the district court had the
authority to reject Cohen’s choice of lead counsel, it does not
follow that having done so it had the authority to select lead
counsel of its own choosing. This argument misses the funda-
mental point that the PSLRA unambiguously assigns this
authority to the lead plaintiff.
[4] When a statute speaks with clarity to an issue, courts
must apply the clear meaning of the statute. Estate of Cowart
v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992). We have
already explained that the PSLRA’s provisions on selection of
lead plaintiff and lead counsel, although containing many
requirements, are “neither overly complex nor ambiguous.”
Cavanaugh, 306 F.3d at 729. Here we address only the
PSLRA’s mandate that “[t]he most adequate plaintiff shall,
subject to the approval of the court, select and retain counsel
to represent the class.” 15 U.S.C. § 78u-4(a)(3)(B)(v). This
provision clearly identifies the most adequate plaintiff as the
actor that “select[s] and retain[s]” class counsel. Although this
power is subject to court approval and is therefore not abso-
lute, it plainly belongs to the lead plaintiff. See id.; see also
In re Cendant Corp. Litig., 264 F.3d 201, 273, 277 (3d Cir.
2001) (holding that the PSLRA is clear that “the power to
1
The rationale for the district court’s decision is not entirely clear
because, as explained below, the district court appears to have articulated
a different explanation for appointing Girard Gibbs in its December Order.
14918 COHEN v. UNITED STATES DISTRICT COURT
‘select and retain’ lead counsel belongs . . . to the lead plain-
tiff, and the court’s role is confined to deciding whether to
‘approve’ that choice” and that should the court disagree with
the lead plaintiff’s choice “it should clearly state why . . . and
should direct the lead plaintiff to undertake an acceptable
selection process”).2 The statute expressly provides that lead
plaintiff has the power to select lead counsel, suggesting that
the identity of the party selecting lead counsel was of substan-
tial importance to Congress. See 15 U.S.C. § 78u-4(a)(3); In
re BankAmerica Corp. Secs. Litig., 350 F.3d 747, 751 (8th
Cir. 2003); Cendant, 264 F.3d at 273. Nor does the statute,
framed in mandatory language, designate any other actor as
authorized to select lead counsel or suggest that the district
court may appropriate this authority. It would be difficult for
the statute to be more clear that it is the lead plaintiff who
selects lead counsel, not the district court.
The clause subjecting the lead plaintiff’s selection of coun-
sel “to the approval of the district court” in no way suggests
that a district court shares in the lead plaintiff’s authority to
select lead counsel or that disapproval of a lead plaintiff’s
choice divests the lead plaintiff of this authority. The ordinary
reading of this clause merely gives the district court the lim-
ited power to accept or reject the lead plaintiff’s selection.
Given that the PSLRA indisputably assigns to the lead plain-
tiff the power to select lead counsel, it would be incongruous
to conclude that this power shifts to the district court follow-
ing disapproval of a lead plaintiff’s selection of lead counsel.
Instead, the opposite conclusion is compelled. The logical
2
Cendant also said that a district court may have limited authority to
conduct an “auction” to appoint lead counsel in the rare case that the lead
plaintiff has selected inadequate counsel, is unable or unwilling to select
adequate counsel, and no other suitable party exists to replace that lead
plaintiff if disqualified. See Cendant, 264 F.3d at 277. In such a situation,
a district court may need to take a more active role in the selection of lead
counsel, although it is unclear exactly from whence this authority would
derive in the statutory text. Regardless, we do not confront such facts in
the current case.
COHEN v. UNITED STATES DISTRICT COURT 14919
interpretation of the statute’s failure to provide an intricate
procedure for the district court to follow after rejecting the
lead plaintiff’s selection is that the power to select lead coun-
sel remains in the hands of the lead plaintiff. Any other result
would allow the district court in all cases to reject lead coun-
sel and then proceed to appoint its own choice.
The Depies Group’s contention that the district court’s
decision was not clear error because no Ninth Circuit prece-
dent squarely addresses this issue is easily disposed of. Even
were we to agree with the Depies Group that Cavanaugh does
not speak to the district court’s authority to select lead counsel
—at best a dubious proposition given that case’s forceful
rejections of district court authority to select lead counsel—
the plain text of the statute prohibits the course taken by the
district court. See United States v. W. R. Grace, 504 F.3d 745,
757-58 (9th Cir. 2007) (finding clear error based on plain text
of statute); DeGeorge, 219 F.3d at 936; see also Cavanaugh,
306 F.3d at 740-41 (Wallace, J., concurring).
Although the issue before Cavanaugh was appointment of
lead plaintiff, Cavanaugh repeatedly states that the district
court lacks authority to select lead counsel. See 306 F.3d at
732-34. In addition, that decision certainly strongly implies
that after disapproving a lead plaintiff’s choice of counsel, the
district court is not free to appoint counsel of its own choos-
ing. See id. at 733 n.12 (explaining that the court should “ask
[the plaintiff] whether he would be willing to serve as lead,
even if the court were to disapprove his choice of counsel and
he were forced to seek the services of another attorney”)
(emphasis added). We should not discount these statements
simply because the precise issue in Cavanaugh was the selec-
tion of the lead plaintiff, not lead counsel. Much of Cava-
naugh’s reasoning is directly premised on the PSLRA’s
mandate that the lead plaintiff, not the district court, selects
lead counsel. See, e.g., id. at 734 (“Finally, allowing the dis-
trict court to select the lead plaintiff based on its view of who
has negotiated the most favorable fee schedule improperly
14920 COHEN v. UNITED STATES DISTRICT COURT
interferes with the lead plaintiff’s authority and responsibility
to select counsel.”). A contrary holding here would not only
fly in the face of the plain text of the statute, it would disre-
gard much of Cavanaugh.
[5] The district court’s decision to appoint Girard Gibbs
was clearly erroneous. This error was a usurpation of power,
pointing in favor of the issuance of the writ.
[6] We have little difficulty determining that the remaining
Bauman factors are also met. With respect to the first and sec-
ond factors, which are closely related, United States v. Har-
per, 729 F.2d 1216, 1222 (9th Cir. 1984), a lost choice of
counsel cannot be adequately remedied through means other
than mandamus and the resultant harm is not correctable on
appeal. See Cole, 366 F.3d at 817, 820 (finding that the first
factor is “affirmatively presented in the context of a disquali-
fication of counsel” because it impairs the parties’ right to
counsel of their choice and this harm also satisfies the second
factor); Christensen v. U.S. Dist. Court, 844 F.2d 694, 697
(9th Cir. 1988); see also Richardson-Merrell, Inc. v. Koller,
472 U.S. 424, 438 (1985) (noting that orders disqualifying
counsel in civil cases are not collateral orders subject to
immediate appeal). Indeed, the deprivation of the right to
select lead counsel was precisely the harm identified in Cava-
naugh.3 See 306 F.3d at 740 (Wallace, J., concurring); see
also id. at 734. The fourth and fifth Bauman factors are also
met. See Valenzuela-Gonzalez, 915 F.2d at 1279 (“Mandamus
is particularly appropriate when we are called upon to deter-
3
The Depies Group argues that Cohen has suffered no harm because
KGS still personally represents him and no attorney client relationship
with Girard Gibbs has been foisted on him given that Girard Gibb’s role
as lead counsel is to represent the class as a whole. These arguments are
beside the point: as lead plaintiff, Cohen has the statutory right to select
class counsel, not merely to hire counsel to separately monitor the litiga-
tion. Moreover, Cohen’s lack of relationship with Girard Gibbs does not
mitigate the harm the district court’s order causes him; rather, it illustrates
that harm.
COHEN v. UNITED STATES DISTRICT COURT 14921
mine the construction of a federal procedural rule in a new
context. Such a situation presents the rare case where both the
fourth and fifth Bauman factors are satisfied: we are presented
with a novel question of law that is simultaneously likely to
be ‘oft-repeated.’ ” (citations omitted)). The application of the
PSLRA, particularly the district court’s authority to select
lead counsel, will be raised in future cases, and has previously
been implicated by district court opinions holding that the
court has authority to conduct “auctions” for lead counsel.
See, e.g., In re Quintus Secs. Litig., 201 F.R.D. 475, 486
(N.D. Cal 2001); see also Cendant, 264 F.3d at 258 n.35 (not-
ing that the court had found eight securities litigation cases
governed by the PSLRA employing auctions).
B. Appointing Lead Counsel
[7] Cohen requests that we remand to the district court with
instructions to appoint KGS as lead counsel. He suggests that
because the district court considered his choice of counsel in
deciding to select him co-lead plaintiff and found that KGS
was free from conflict and would vigorously prosecute the
action, this ends the district court’s inquiry into the adequacy
of counsel.4 We think that would go too far. The court con-
cluded that Cohen should be lead plaintiff, but acted under the
misapprehension that it was the district court’s role and not
the lead plaintiff’s role to choose lead counsel. Now that our
4
Although none of the parties raise the issue, the district court may have
erred in appointing “co-lead plaintiffs,” a practice occasionally employed
by district courts. See, e.g., Yousefi v. Lockheed Martin Corp., 70 F. Supp.
2d 1061, 1070 (C.D. Cal. 1999) (appointing an individual and city as lead
plaintiffs); In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 47
(S.D.N.Y. 1998) (appointing three co-lead plaintiffs). While the PSLRA
allows a group to serve as lead plaintiff, it also consistently refers to the
lead plaintiff and most adequate plaintiff in the singular, suggesting that
the district court should appoint only one lead plaintiff, whether an indi-
vidual or a group. See 15 U.S.C. § 78u-4(a)(3); see also Cendant, 264 F.3d
at 223 n.3. The appointment of multiple lead plaintiffs would also tend to
run counter to the sequential inquiry we outlined for selection of lead
plaintiff. See Cavanaugh, 306 F.3d at 730-31.
14922 COHEN v. UNITED STATES DISTRICT COURT
mandate will assure that Cohen chooses lead counsel, it is for
the district court to approve or disapprove Cohen’s choice of
lead counsel subject to appropriate criteria.
[8] Consistent with congressional intent in enacting the
PSLRA to vest authority for selecting class counsel in the lead
plaintiff and our reasoning in Cavanaugh, the district court
should not reject a lead plaintiff’s proposed counsel merely
because it would have chosen differently. See 306 F.3d at
732, 734 & n.14 (explaining that selection of lead counsel “is
not a beauty contest,” that selection of counsel is an “impor-
tant client prerogative,” and that a contrary rule would “evis-
cerate” the PSLRA’s assumption that the lead plaintiff is as
or more capable than the court to select class counsel) (quot-
ing Cendant, 264 F.3d at 276). Rather, like the Third Circuit,
we hold that if the lead plaintiff has made a reasonable choice
of counsel, the district court should generally defer to that
choice. See Cendant, 264 F.3d at 276 (enumerating factors to
consider in conducting this inquiry, including the lead plain-
tiff’s sophistication and experience, the process through
which the lead plaintiff selected its candidates for and final
choice of lead counsel, the qualifications and experience of
selected counsel, and evidence of arms-length negotiations
between lead plaintiff and proposed counsel); see also H.R.
Conf. Rep. No. 104-369 (1995), reprinted in 1995
U.S.C.C.A.N. 730, 734 (suggesting that the district court’s
authority to disapprove lead counsel should be exercised
when necessary to protect the interests of the class). In the
event that the district court determines the lead plaintiff has
not made a reasonable choice of counsel, the court should
articulate its reasons for disapproving plaintiff’s choice and
provide an opportunity for lead plaintiff to select acceptable
counsel. See Cendant, 264 F.3d at 277; cf. Cavanaugh, 306
F.3d at 733 n.12.
The district court issued conflicting rationales for its deci-
sion to appoint Girard Gibbs co-lead counsel, leaving it
unclear whether the court was disapproving Cohen’s choice of
COHEN v. UNITED STATES DISTRICT COURT 14923
KGS as inadequate or whether it merely found Girard Gibbs
to be a better choice. Compare December Order (explaining
that the district court had “review[ed] each firm’s resume”
and decided Girard Gibbs was “the most qualified counsel”
without any discussion of whether Cohen’s choice was inade-
quate) with January Order (suggesting the district court disap-
proved of Cohen’s choice of lead counsel). Regardless, even
if the district court rejected KGS, it is not clear why it did so
or whether the court applied appropriate deference to Cohen’s
choice. Rather than attempting to evaluate Cohen’s choice of
KGS on the limited record before us, we remand to the district
court to consider, using appropriate deference, whether KGS
was an unreasonable choice of lead counsel under the circum-
stances.
II. The Depies Group’s Requested “Remedy”
[9] Having determined that the district court’s decision to
appoint Girard Gibbs was clear error justifying a writ of man-
damus, we are confronted with the Depies Group’s assertion
that the proper remedy is to remand to the district court with
instructions to reassess the appointment of lead plaintiff. We
decline to consider the merits of whether the district court
erred in refusing to appoint the Depies Group as lead plaintiff
because it is outside the scope of the mandamus petition.
In its response to Cohen’s petition for mandamus, the
Depies Group raises the argument that the district court erred
in appointing lead plaintiff. Cohen’s petition in no way chal-
lenged the appointment of lead plaintiff. The Depies Group
cite no authority that they may permissibly raise such an
entirely distinct issue5 in their response to Cohen’s petition
5
The Depies Group’s assertion at oral argument that these issues are
related because the district court may have “co-joined” the selection of
Cohen as lead plaintiff with the selection of Girard Gibbs as lead counsel
is entirely speculative and unsupported by the record. Regardless, even
were this the case it would not excuse the Depies Group’s failure to prop-
erly assert its challenge to Cohen’s appointment as lead plaintiff.
14924 COHEN v. UNITED STATES DISTRICT COURT
and we are aware of none that so hold. See Fed R. App. Proc.
21; cf. In re Buskin Assoc., Inc., 864 F.2d 241, 247-48 (1st
Cir. 1989) (explaining that mandamus neither contemplates
nor permits the filing of counterclaims). They also make no
attempt to satisfy the Bauman factors or demonstrate that they
are entitled to a writ of mandamus, despite our precedent that
mandamus is the proper vehicle to challenge the appointment
of lead plaintiff at this stage in the litigation absent certifica-
tion of an interlocutory appeal. See Cavanaugh, 306 F.3d at
730, 739; Z-Seven, 231 F.3d at 1218-20. Rather, it appears
that the Depies Group, by couching its arguments in terms of
a “remedy,” attempts to avoid the need to file a petition and
the strict requirements for a writ of mandamus, and invites
this court to disregard the same. We decline the invitation. Cf.
DeGeorge, 219 F.3d at 935 (explaining that the strict rules
governing mandamus prevent parties from “eviscerat[ing] the
statutory scheme established by Congress to strictly circum-
scribe piecemeal appeal”) (quotation omitted); In re Bushkin,
864 F.2d at 247-48.
CONCLUSION
[10] Cohen’s petition for writ of mandamus is granted to
the extent it seeks to vacate the district court’s order appoint-
ing Girard Gibbs. We remand to the district court to accept or
reject Cohen’s selection of KGS, applying the applicable stan-
dard.
WRIT GRANTED IN PART.