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PageID #: 218\n\n\n\n\n UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF OHIO\n EASTERN DIVISION\n\n\n CALEB CHO, individually and on behalf of ) CASE NO. 5:26-cv-886\n all others similarly situated, )\n )\n )\n Plaintiffs, ) CHIEF JUDGE SARA LIOI\n )\n vs. )\n )\n BABCOCK & WILCOX ENTERPRISES, ) MEMORANDUM OPINION &\n INC., et al., ) ORDER\n )\n )\n Defendants. )\n\n\n This matter comes before the Court on the motion of Barry Jaye to be appointed lead\n\nplaintiff and for approval of his selection of lead counsel pursuant to 15 U.S.C. \u00a7 78u-4(a)(3).\n\n(Doc. No. 11 (Motion).) No others have sought to be appointed lead plaintiff or to have their\n\nselection of lead counsel approved. 1 Defendants Babcock & Wilcox Enterprises, Inc. (\u201cB&W\u201d),\n\nKenneth M. Young, and Cameron Frymyer (collectively, \u201cdefendants\u201d) filed a response \u201cto bring\n\n. . . threshold issues to the Court\u2019s attention[.]\u201d (Doc. No. 15 (Response), at 4 n.5.) 2 For the reasons\n\nstated herein, Jaye\u2019s motion is DENIED.\n\n I. BACKGROUND\n\n This is a putative class action brought under sections 10(b) and 20(a) of the Securities\n\n\n\n1\n The time for others to move for appointment as lead plaintiff under the Private Securities Litigation Reform Act\n(\u201cPSLRA\u201d) has expired. See 15 U.S.C. \u00a7 78u-4(a)(3)(A)(i)(II) (requiring motions for appointment as lead plaintiff to\nbe filed within 60 days of publication of required notice); (Doc. No. 11-2 (Leiberman Decl.) \u00b6 3 (averring that required\nnotice was published on April 14, 2026).)\n2\n All page number references herein are to the consecutive page numbers applied to each individual document by the\nCourt\u2019s electronic filing system.\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 2 of 13. PageID #: 219\n\n\n\n\nExchange Act of 1934. (Doc. No. 1 (Complaint) \u00b6 1.) The claims stem from a contract procured\n\nby B&W, first announced on November 4, 2025, and then formally executed on March 4, 2026.\n\n(Id. \u00b6\u00b6 4, 11.) Plaintiff Caleb Cho alleges that, during this period, defendants made various false\n\nor misleading statements or omissions about this contract that artificially inflated the value of\n\nB&W securities. (Id. \u00b6\u00b6 14, 63.) Plaintiff further alleges that he and other class members purchased\n\nB&W securities at an artificially inflated price. (Id. \u00b6 79.) As alleged, the value of B&W securities\n\nbegan to fall on March 12, 2026, when defendants\u2019 alleged misconduct came to light in a report\n\n(the \u201cdisclosing publication\u201d). (Id. \u00b6\u00b6 15, 57.)\n\n On April 14, 2026, Cho filed the complaint in this action on behalf of \u201call persons and\n\nentities other than [d]efendants that purchased or otherwise acquired B&W securities between\n\nNovember 5, 2025 and March 11, 2026\u201d (the \u201cClass Period\u201d). (Id. \u00b6 1.) That same day, notice of\n\nthe putative class action was published on ACCESS Newswire. (Doc. No. 11-2 \u00b6 3; Doc. No. 11-4\n\n(Class Action Notice).) The notice advised purported class members of this action, the claims\n\nasserted, the purported class period, and that they had 60 days to seek to be lead plaintiff. (Doc.\n\nNo. 11-4, at 1.) Jaye filed the present motion on June 15, 2026. (Doc. No. 11.)\n\n II. LEGAL STANDARD\n\n Section 78u-4(a)(3) governs the appointment of lead plaintiff and counsel in securities class\n\nactions. See 15 U.S.C. \u00a7\u00a7 78u-4(a)(1), (a)(3). The statute provides that, within 20 days of filing a\n\nsecurities class action, the plaintiff must publish \u201cin a widely circulated national business-oriented\n\npublication or wire service, a notice advising members of the purported plaintiff class\u201d of the\n\naction, the claims asserted, and the purported class period. 15 U.S.C. \u00a7 78u-4(a)(3)(A)(i)(I).\n\nPurported class members then have 60 days from the date of publication to move to be appointed\n\n 2\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 3 of 13. PageID #: 220\n\n\n\n\nlead plaintiff. 15 U.S.C. \u00a7 78u-4(a)(3)(A)(i)(II).\n\n Upon a motion, the court is to appoint as lead plaintiff the purported class member \u201cthe\n\ncourt determines to be most capable of adequately representing the interests of class members\u201d\n\n(referred to as the \u201cmost adequate plaintiff\u201d). 15 U.S.C. \u00a7 78u-4(a)(3)(B)(i). The statute creates a\n\nrebuttable presumption that the most adequate plaintiff is the person who: \u201c(aa) has either filed the\n\ncomplaint or made a motion in response to a notice under subparagraph (A)(i); (bb) in the\n\ndetermination of the court, has the largest financial interest in the relief sought by the class; and\n\n(cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.\u201d 15\n\nU.S.C. \u00a7 78u-4(a)(3)(B)(iii)(I). This presumption may be rebutted upon a showing that the movant\n\n\u201c(aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique\n\ndefenses that render such plaintiff incapable of adequately representing the class.\u201d 15 U.S.C. \u00a7\n\n78u-4(a)(3)(B)(iii)(II). Once the lead plaintiff is appointed, they may, \u201csubject to the approval of\n\nthe court, select and retain counsel to represent the class.\u201d 15 U.S.C. \u00a7 78u-4(a)(3)(B)(v).\n\n III. DISCUSSION\n\n As a preliminary matter, Jaye argues that defendants are not entitled to be heard on a motion\n\nto appoint a lead plaintiff. (Doc. No. 16 (Reply), at 3\u20134.) Federal courts disagree on whether a\n\ndefendant may be heard on a \u00a7 78u-4(a)(3) motion, and \u201cthe Sixth Circuit has not opined on this\n\nissue[.]\u201d Bluestone v. Sadove, No. 3:18-cv-63, 2018 WL 3374160, at *5 (E.D. Tenn. July 6, 2018)\n\n(citations omitted), report and recommendation adopted, 2018 WL 5973814 (E.D. Tenn. Nov. 14,\n\n2018). The issue, however, is largely academic. Regardless of whether a defendant may be heard\n\non a \u00a7 78u-4(a)(3) motion, the Court still has a duty, under the statute, to determine a potential\n\nlead plaintiff\u2019s adequacy for the role. See 15 U.S.C. \u00a7 78u-4(a)(3)(B)(i) (directing courts to\n\n 3\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 4 of 13. PageID #: 221\n\n\n\n\n\u201cappoint as lead plaintiff the member or members of the purported plaintiff class that the court\n\ndetermines to be most capable of adequately representing the interests of class members\u201d\n\n(emphasis added)). Whether the Court does this analysis with or without the benefit of opposition\n\nbriefing makes little difference. Cf. Bosch v. Credit Suisse Grp. AG, No. 22-cv-2477, 2022 WL\n\n4285377, at *6 (E.D.N.Y. Sept. 12, 2022) (\u201c[I]t is well settled that the [c]ourt is obligated to\n\nevaluate the requirements of [\u00a7 78u-4(a)(3)], even though [movant\u2019s] motion is unopposed.\u201d\n\n(collecting cases)). The Court can thus scrutinize Jaye\u2019s motion without deciding whether\n\ndefendants have a right to be heard on it.\n\n a. Procedural Requirements\n\n Moving on to the analysis, \u00a7 78u-4(a)(3)\u2019s procedural requirements are met. The complaint\n\nwas filed on April 14, 2026. (Doc. No. 1.) That same day, notice of the putative class action was\n\npublished on ACCESS Newswire. (Doc. No. 11-2 \u00b6 3; Doc. No. 11-4.) The notice advised purported\n\nclass members of this action, the claims asserted, the purported class period, and that they had 60\n\ndays to seek to be lead plaintiff. (Doc. No. 11-4, at 1.) Jaye timely filed the present motion on June\n\n15, 2026. (Doc. No. 11.) 3 Jaye has thus satisfied \u00a7 78u-4(a)(3)\u2019s procedural requirements.\n\n b. Substantive Requirements\n\n Jaye, however, fails to substantively set forth his adequacy under 15 U.S.C. \u00a7 78u-4(a)(3).\n\nAs discussed below, Jaye fails to provide any basis for finding that he has \u201cthe largest financial\n\ninterest in the relief sought\u201d as required to establish presumptive adequacy. 15 U.S.C. \u00a7 78u-\n\n4(a)(3)(B)(iii)(I)(bb). Further, even if Jaye could establish presumptive adequacy, Jaye\u2019s own\n\n\n\n3\n The Court notes that 60 days from the publication date, April 14, 2026, falls on June 13, 2026\u2014a Saturday. By\noperation of Fed. R. Civ. P. 6(a), the deadline to seek appointment as lead plaintiff was thus June 15, 2026.\n 4\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 5 of 13. PageID #: 222\n\n\n\n\nsubmissions show that he is \u201csubject to unique defenses[,]\u201d thus rebutting the presumption. 15\n\nU.S.C. \u00a7 78u-4(a)(3)(B)(iii)(II)(bb).\n\n i. Jaye Fails to Show Presumptive Adequacy\n\n District courts disagree on how to ascertain financial interest for purposes of presumptive\n\nadequacy under \u00a7 78u-4(a)(3). While \u201cmost courts agree that [the approximate losses suffered by\n\nthe movant] is the most salient factor[,]\u201d Guzman v. Ford Motor Co., 801 F. Supp. 3d 706, 716\n\n(E.D. Mich. 2025), courts disagree on what counts as a loss.\n\n This disagreement concerns application of the Supreme Court\u2019s decision in Dura Pharms.,\n\nInc. v. Broudo, 544 U.S. 336, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). Dura held that, to satisfy\n\n\u00a7 78u-4\u2019s causation requirement, \u201ca plaintiff must show that the defendant\u2019s misconduct artificially\n\ninflated the price of the target company\u2019s stock . . . and that the stock price later declined (and thus\n\ncaused the plaintiff\u2019s shares to be worth less) immediately following a disclosure of the alleged\n\nmisconduct to the public.\u201d Pio v. Gen. Motors Co., No. 14-cv-11191, 2014 WL 5421230, at *3 n.1\n\n(E.D. Mich. Oct. 24, 2014) (citing Dura, 544 U.S. at 344\u201347 (emphasis in original)). In practice,\n\nDura means that an investor typically cannot recover for losses on any securities sold before the\n\nchallenged misconduct was disclosed. Plagens v. Deckard, Nos. 1:20-cv-2744, 1:23-cv-238, 2021\n\nWL 3284265, at *8 (N.D. Ohio Aug. 2, 2021) (citing Dura, 544 U.S. at 345\u201346).\n\n District courts in the Sixth Circuit disagree on whether to apply Dura in the financial\n\ninterest analysis. Compare Pio, 2014 WL 5421230, at *3 (applying Dura), and Plagens, 2021 WL\n\n3284265, at *8 (same), with Owens v. FirstEnergy Corp., Nos. 2:20-cv-3785, 2:20-cv-4287, 2020\n\nWL 6873421, at *7 (S.D. Ohio Nov. 23, 2020) (declining to apply Dura), and Blitz v. AgFeed\n\nIndus., Inc., No. 3:11-cv-992, 2012 WL 1192814, at *4 (M.D. Tenn. Apr. 10, 2012) (same). Courts\n\n 5\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 6 of 13. PageID #: 223\n\n\n\n\nthat apply Dura at this stage only consider \u201closses incurred from sales occurring after disclosure[.]\u201d\n\nKops v. NVE Corp., Nos. 06-cv-574, 06-cv-982, 06-cv-997, 2006 WL 2035508, at *5 (D. Minn.\n\nJuly 19, 2006). Courts that do not apply Dura consider all losses suffered during the class period.\n\nSee, e.g., Owens, 2020 WL 6873421, at *6\u20137.\n\n This Court joins those applying Dura in the financial interest analysis. This result flows\n\nfrom the statute itself. Section 78u-4(a)(3) requires the Court to determine the plaintiff with \u201cthe\n\nlargest financial interest in the relief sought by the class[.]\u201d 15 U.S.C. \u00a7 78u-4(a)(3)(B)(iii)(I)(bb)\n\n(emphasis added). The Court does not see how it could determine one\u2019s financial interest in the\n\nrelief sought without some reference to what relief is available under the law. See Plagens, 2021\n\nWL 3284265, at *8 (\u201c[I]t is difficult to see how approximating losses that a lead plaintiff may not\n\nrecover as a matter of law . . . advances the statutory text . . . .\u201d); see also Peacock v. Dutch Bros,\n\nInc., No. 23-cv-1794, 2023 WL 4976814, at *4 (S.D.N.Y. Aug. 3, 2023) (\u201cBecause the lead\n\nplaintiff should be the class member who stands to recover the most from that litigation, courts\n\nshould consider only those losses that will actually be recoverable in the class action.\u201d (quotation\n\nmarks and citations omitted) (emphasis in original)). This result also flows from the PSLRA\u2019s\n\npurpose. The statute was enacted to ensure that securities class actions were led by plaintiffs with\n\nreal interest in the litigation and not by repeat-player law firms seeking \u201ca windfall of attorney\u2019s\n\nfees[.]\u201d Bensley v. FalconStor Software, Inc., 277 F.R.D. 231, 234 n.8 (E.D.N.Y. 2011) (quoting\n\nGreen v. Ameritrade, Inc., 279 F.3d 590, 595 (8th Cir. 2002)). Turning a blind eye to legal\n\nlimitations on recovery would risk appointing a lead plaintiff who has no recoverable interest in\n\nthe action, contravening the statute\u2019s purpose. Thus, the analysis under \u00a7 78u-4(a)(3)(B)(iii)(I)(bb)\n\nmust be conducted in light of background legal principles (like the Supreme Court\u2019s decision in\n\n 6\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 7 of 13. PageID #: 224\n\n\n\n\nDura) that define the bounds of recoverable damages. 4\n\n Jaye argues that Dura was decided on a motion to dismiss and is thus inapplicable at this\n\nstage. (Doc. No. 16, at 4); see also Blitz, 2012 WL 1192814, at *4 (distinguishing Dura, in part,\n\non similar grounds). But Dura\u2019s procedural posture does not mean the Supreme Court\u2019s clear\n\npronouncement of law is any less applicable at the lead plaintiff stage. See Galmi v. Teva Pharms.\n\nIndus. Ltd., 302 F. Supp. 3d 485, 498 (D. Conn. 2017) (\u201cAlthough Dura . . . involved the pleading\n\nstandards for alleging loss causation, its reasoning has been extended to the context of a motion\n\nfor appointment as lead plaintiff.\u201d (collecting cases)). The Court cannot simply ignore clear law\n\non recoverable losses. To do so \u201cwould be [an] abdicat[ion] [of the courts\u2019] responsibility under\n\nthe PSLRA[.]\u201d Xu, 2021 WL 3861454, at *7 n.13 (quotation marks and citation omitted).\n\n Further, even though the Court holds that it must consider Dura, it need not partake in\n\n\u201c[a]djudication of the [r]ecoverability of Jaye\u2019s [l]osses[,]\u201d as Jaye fears. (Doc. No. 16, at 4.) The\n\nfinancial interest analysis is not a final adjudication of recoverability. See Perlmutter v. Intuitive\n\nSurgical, Inc., No. 10-cv-3451, 2011 WL 566814, at *6 n.8 (N.D. Cal. Feb. 15, 2011) (citation\n\nomitted). Rather, the relevant inquiry is whether the movant presents some evidence of a financial\n\ninterest that could be recoverable under applicable law. 5 Cf. Cambridge Ret. Sys. v. Mednax, Inc.,\n\n\n\n4\n Additionally, it appears that most district courts outside of the Sixth Circuit apply Dura at the lead plaintiff stage.\nSee, e.g., Peacock, 2023 WL 4976814, at *4 (citations omitted); Xu v. FibroGen, Inc., No. 21-cv-2623, 2021 WL\n3861454, at *5 (N.D. Cal. Aug. 30, 2021) (citation omitted); Soto v. Hensler, 235 F. Supp. 3d 607, 615 (D. Del. 2017)\n(citations omitted), adopted sub nom. In re Horsehead Holding Corp. Sec. Litig., No. 16-cv-292, 2017 WL 5188057\n(D. Del. Nov. 9, 2017); but see Cook v. Allergn PLC, Nos. 18-cv-12089, 18-cv-12219, 2019 WL 1510894, at *3\n(S.D.N.Y. Mar. 21, 2019) (noting that application of Dura at lead plaintiff stage is \u201csubject to considerable dispute\u201d\n(citations omitted)).\n5\n Of course, if there were competing motions to be appointed lead plaintiff, the next inquiry would be which of the\nmovants evinced the largest financial interest. See 15 U.S.C. \u00a7 78u-4(a)(3)(B)(iii)(I)(bb) (identifying as presumptively\nmost adequate lead plaintiff the one who, inter alia, the court determines to have \u201cthe largest financial interest in the\nrelief sought by the class\u201d (emphasis added)).\n 7\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 8 of 13. PageID #: 225\n\n\n\n\nNo. 18-cv-61572, 2018 WL 8804814, at *2 n.4 (S.D. Fla. Dec. 6, 2018) (\u201cBefore calculating a\n\nplaintiff\u2019s financial interest, the court must first determine what portion, if any, of a plaintiff\u2019s\n\nlosses constitute potential recoverable losses[.]\u201d (citation omitted) (emphasis added)), report and\n\nrecommendation adopted, 2018 WL 6978626 (S.D. Fla. Dec. 21, 2018); Emerson v. Genocea\n\nBiosciences, Inc., Nos. 17-cv-12137, 17-cv-12168, 17-cv-12474, 2018 WL 839382, at *3 n.2 (D.\n\nMass. Feb. 12, 2018) (describing \u00a7 78u-4(a)(3) movant\u2019s burden of proof as \u201crelatively low\u201d\n\n(citations omitted)).\n\n Looking to Jaye\u2019s submissions, he fails to make the requisite showing. The complaint in\n\nthis action alleges a single disclosure\u2014the March 12, 2026, disclosing publication. (Doc. No. 1 \u00b6\n\n15.) But Jaye\u2019s own submission shows that he sold all B&W securities before March 12, 2026.\n\n(Doc. No. 11-3 (Exhibit A to Lieberman Decl.), at 2; Doc. No. 11-5 (Exhibit C to Lieberman\n\nDecl.), at 4.) On the evidence presented, Jaye would not be able to recover for any losses suffered\n\nbefore the disclosing publication because, under Dura, he would be unable to establish causation\n\nfor his losses. See Kops, 2006 WL 2035508, at *5 (\u201cUnder Dura[] principles . . . , [movant] has\n\nnot suffered any loss as the result of [d]efendants\u2019 actions because [movant] sold all of his shares\n\nbefore the truth was revealed[.]\u201d). Jaye thus fails to show a financial interest and presumptive\n\nadequacy. See Topping v. Deloitte Touche Tohmatsu CPA, 95 F. Supp. 3d 607, 622 (S.D.N.Y.\n\n2015) (holding movant did not have largest financial interest where movant \u201csold all its . . . shares\n\nprior to any corrective disclosure\u201d); cf. Bensley, 277 F.R.D. at 241 (rejecting movant as lead\n\nplaintiff where movant \u201cwas a total in-and-out trader\u201d). 6\n\n Jaye, however, argues that he should be permitted to establish his financial interest and\n\n\n6\n An \u201cin-and-out trader\u201d is one who \u201csold all of its shares prior to any revelation of fraud.\u201d Bensley, 277 F.R.D. at 237.\n 8\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 9 of 13. PageID #: 226\n\n\n\n\npresumptive adequacy via a partial disclosure theory. Specifically, he argues that he should be\n\npermitted to pursue a theory that defendants\u2019 alleged misconduct was disclosed through a series of\n\npartial disclosures that decreased the value of his securities before he sold them. (Doc. No. 16, at\n\n5\u20136.) Such a theory is viable under Dura. See In re Regions Morgan Keegan Closed-End Fund\n\nLitig., No. 07-cv-2830, 2010 WL 5173851, at *10 (W.D. Tenn. Dec. 15, 2010) (citations omitted).\n\nThe problem, however, is that the complaint does not plead any partial disclosures\u2014it pleads only\n\na single complete disclosure. (Doc. No. 1 \u00b6 15.)\n\n \u201cCourts have grappled with whether or not to allow a proposed lead plaintiff to proceed\n\nunder a [partial disclosure theory] that has not been supported by allegations in the complaint.\u201d\n\nGalmi, 302 F. Supp. 3d at 501 (collecting cases). As Galmi persuasively explains, courts permit\n\npotential lead plaintiffs to proceed on a partial disclosure theory not alleged in the complaint, if\n\nthe theory is supported by facts alleged in the \u201cdeclarations of the moving parties.\u201d Id. at 502\n\n(citations omitted). If the potential lead plaintiff fails to provide any allegations of a partial\n\ndisclosure, however, they may not proceed. See Darish v. N. Dynasty Mins. Ltd., No. 20-cv-5917,\n\n2021 WL 1026567, at *7 (E.D.N.Y. Mar. 17, 2021) (\u201c[On \u00a7 78u-4(a)(3) motions,] courts have\n\nrejected in-and-out traders who failed to plausibly allege any partial disclosures to which they\n\ncould tether their losses.\u201d (collecting cases)). Here, Jaye provides no allegations of a partial\n\ndisclosure; he merely suggests that partial disclosures may have occurred and that, if they did, Jaye\n\nwould be able to recover. (Doc. No. 16, at 6.) Without any factual allegations of a partial\n\ndisclosure, Jaye may not proceed on a partial disclosure theory to establish his financial interest\n\nand presumptive adequacy under \u00a7 78u-4(a)(3)(B)(iii)(I).\n\n Jaye thus fails to show his financial interest and, resultantly, his presumptive adequacy to\n\n 9\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 10 of 13. PageID #: 227\n\n\n\n\nserve as lead plaintiff. Because Jaye fails to show any financial interest, the Court need not address\n\nwhether Jaye otherwise satisfies Rule 23, as required under \u00a7 78u-4(a)(3)(B)(iii)(I)(cc). 7\n\n ii. Jaye is Subject to a Unique Defense\n\n Even if the Court were to ignore Dura and hold that Jaye satisfied the requirements of\n\npresumptive adequacy, Jaye\u2019s own submissions rebut the presumption. The presumption is\n\nrebutted when a movant is \u201csubject to unique defenses that render [him] incapable of adequately\n\nrepresenting the class.\u201d 15 U.S.C. \u00a7 78u-4(a)(3)(B)(iii)(II)(bb). A potential lead plaintiff who sells\n\nall of his securities before any alleged disclosure is subject to a unique defense. See, e.g., Maliarov\n\nv. Eros Int'l PLC, Nos. 15-cv-8956, 16-cv-223, 2016 WL 1367246, at *4 (S.D.N.Y. Apr. 5, 2016);\n\nIn re Goodyear Tire & Rubber Co. Sec. Litig., No. 5:03-cv-2166, 2004 WL 3314943, at *4 (N.D.\n\nOhio May 12, 2004); In re Cable & Wireless, PLC Sec. Litig., 217 F.R.D. 372, 379 (E.D. Va.\n\n2003). As discussed above, Jaye\u2019s own submissions indicate that he sold all of his securities in\n\nB&W before the disclosing publication, and he fails to allege any partial disclosures prior to the\n\nsale of his securities. Jaye is subject to a unique defense, thus rebutting any presumptive adequacy\n\nhe may have established.\n\n iii. Jaye\u2019s Remaining Arguments are Unavailing\n\n Jaye\u2019s remaining arguments fail. Jaye argues that the Court cannot deny his motion because\n\n\u00a7 78u-4(a)(3) mandates appointment of a lead plaintiff. (Doc. No. 16, at 9.) Section 78u-4(a)(3)\n\nuses the mandatory language \u201cshall.\u201d 15 U.S.C. \u00a7 78u-4(a)(3)(B)(i). But it does not mandate the\n\n7\n But the Court notes persuasive case law suggests that a potential lead plaintiff\u2019s sale of all securities before any\ndisclosure of misconduct prevents a potential lead plaintiff from satisfying Rule 23. See Topping, 95 F. Supp. 3d at\n622 n.16 (\u201cAlthough [movant] fails in its ability to demonstrate the greatest financial interest, the Court also observes\nthat [movant\u2019s] status as an in-and-out trader would render it an inappropriate lead plaintiff under the third prong of\nthe PSLRA\u2019s evaluation of a potential lead plaintiff: that it otherwise satisfies the requirements of Rule 23 of the\nFederal Rules of Civil Procedure.\u201d (collecting cases)).\n 10\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 11 of 13. PageID #: 228\n\n\n\n\nappointment of just anyone as lead plaintiff. It only requires the Court to appoint as lead plaintiff\n\nsomeone \u201cthat the court determines to be most capable of adequately representing the interests of\n\nclass members . . . .\u201d 15 U.S.C. \u00a7 78u-4(a)(3)(B)(i). Absent such an individual, the statute imposes\n\nno mandate to appoint a lead plaintiff. See Bosch, 2022 WL 4285377, at *6 (rejecting argument\n\nthat \u00a7 78u-4(a)(3) mandated appointment of lead plaintiff); see also Palm Tran, Inc. Amalgamated\n\nTransit Union Loc. 1577 Pension Plan v. Credit Acceptance Corp., No. 20-cv-12698, 2021 WL\n\n2177078, at *1 (E.D. Mich. May 28, 2021) (\u201cAlthough a motion for appointment as lead plaintiff\n\nand lead counsel may be unopposed, a court must evaluate the information before it and assess\n\nwhether a party requesting appointment as lead plaintiff and their chosen counsel should serve in\n\nthose capacities.\u201d).\n\n Jaye also argues that denial of his motion would confuse, delay, or otherwise prejudice the\n\nadjudication of this action. (Doc. No. 16, at 10.) Any potential prejudice caused by denying Jaye\u2019s\n\nmotion is outweighed by the potential prejudice of appointing as lead plaintiff one who is\n\ninadequate for the task. As discussed above, the purpose of the PSLRA was to ensure that securities\n\nclass actions are led by plaintiffs with real interest in the litigation. See Bensley, 277 F.R.D. at 234\n\nn.8 (citing Green, 279 F.3d at 595). Granting Jaye\u2019s motion, despite his failure to show his ability\n\nto adequately represent the class, would thus substantially prejudice this action. See Bosch, 2022\n\nWL 4285377, at *7 (\u201c[T]he members of the putative class would be prejudiced if the [c]ourt were\n\nto appoint a lead plaintiff who fails to satisfy Rule 23\u2019s adequacy requirement[.]\u201d (citation\n\nomitted)).\n\n ***\n\n The Court recognizes that this order leaves the case without a lead plaintiff. But the Court\u2019s\n\n 11\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 12 of 13. PageID #: 229\n\n\n\n\ndenial of the present motion does not necessarily spell the end. First, this case can still be litigated\n\non an individual basis. Cf. In re Allergan PLC Sec. Litig., No. 18-cv-12089, 2020 WL 5796763, at\n\n*9 (S.D.N.Y. Sept. 29, 2020) (suggesting similar possibility after rejecting lead plaintiff as class\n\nrepresentative at class certification stage). Second, the Court sees nothing in the statute that would\n\nprevent plaintiff (or any other potential class member) from refiling this class action and resetting\n\nthe statutory deadline for seeking to be lead plaintiff. Finally, the Court may have authority to\n\norder the reissuance of the notice under 15 U.S.C. \u00a7 78u-4(a)(3)(A) and thus extending the time\n\nfor potential lead plaintiffs to move for appointment. 8 In re NYSE Specialists Sec. Litig., 240\n\nF.R.D. 128, 142 (S.D.N.Y. 2007) (\u201c[S]ome courts have formally re-opened the lead plaintiff\n\nprocess by providing for a new notice and motion period.\u201d (citations omitted)). In the end, if no\n\nadequate lead plaintiff is willing to step up, \u201cperhaps the case cannot be maintained as a class\n\naction[.]\u201d In re Cavanaugh, 306 F.3d 726, 731 n.7 (9th Cir. 2002).\n\n IV. CONCLUSION\n\n Barry Jaye\u2019s motion for appointment as lead plaintiff and approval of selection of lead\n\ncounsel (Doc. No. 11) is DENIED. The stay on case deadlines previously entered by the Court\n\n(07/16/2026 Order [non-document]) is hereby lifted. The Court further directs the parties to meet\n\nand confer and, within fourteen days of the date of this order, submit a joint status report. The joint\n\nstatus report should address (1) whether plaintiff intends to pursue this case individually, refile the\n\nclass action, or move the Court to order reissuance of the notice under 15 U.S.C. \u00a7 78u-4(a)(3)(A);\n\n(2) if plaintiff intends to pursue this case individually, a proposed deadline for defendants to answer\n\n\n8\n The Court does not rule on whether district courts have such authority. If plaintiff (or anyone else) moves this Court\nto order reissuance of the notice under 15 U.S.C. \u00a7 78u-4(a)(3)(A), the issue of the Court\u2019s authority to do so should\nbe fully briefed.\n 12\n\f Case: 5:26-cv-00886-SL Doc #: 20 Filed: 08/03/26 13 of 13. PageID #: 230\n\n\n\n\nor otherwise respond to the complaint; and (3) any other agreed proposals the parties deem\n\nappropriate to submit to the Court at this stage.\n\n IT IS SO ORDERED.\n\n\n Dated: August 3, 2026\n HONORABLE SARA LIOI\n CHIEF JUDGE\n UNITED STATES DISTRICT COURT\n\n\n\n\n 13\n\f","ocr_status":2,"date_upload":"2026-08-13T00:21:39.148318-07:00","document_number":"20","attachment_number":null,"pacer_doc_id":"141014424018","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order on Motion for appointment of counsel AND Order on Motion for order","acms_document_guid":""}],"date_created":"2026-08-03T08:20:03.262863-07:00","date_modified":"2026-09-03T19:18:20.500959-07:00","date_filed":"2026-08-03","time_filed":"11:13:20","entry_number":20,"recap_sequence_number":"2026-08-03.001","pacer_sequence_number":97,"description":" Memorandum Opinion & Order denying Barry Jaye's motion for appointment as lead plaintiff and approval of selection of lead counsel (Related Doc # 11 ). The stay on case deadlines previously entered by the Court is hereby lifted. The Court further directs the parties to meet and confer and, within fourteen days of the date of this order, submit a joint status report. Chief District Judge Sara Lioi on 8/3/2026. 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PageID #: 1\n\n\n\n\n UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF OHIO\n\n\n CALEB CHO, Individually and on Behalf of Case No.\n All Others Similarly Situated,\n\n Plaintiff, CLASS ACTION COMPLAINT\n\n v.\n JURY TRIAL DEMANDED\n BABCOCK & WILCOX ENTERPRISES, INC.,\n KENNETH M. YOUNG, and CAMERON\n FRYMYER,\n\n Defendants.\n\n\n Plaintiff Caleb Cho (\u201cPlaintiff\u201d), individually and on behalf of all others similarly situated,\n\nby Plaintiff\u2019s undersigned attorneys, for Plaintiff\u2019s complaint against Defendants, alleges the\n\nfollowing based upon personal knowledge as to Plaintiff and Plaintiff\u2019s own acts, and information\n\nand belief as to all other matters, based upon, inter alia, the investigation conducted by and through\n\nPlaintiff\u2019s attorneys, which included, among other things, a review of the Defendants\u2019 public\n\ndocuments, conference calls and announcements made by Defendants, United States (\u201cU.S.\u201d)\n\nSecurities and Exchange Commission (\u201cSEC\u201d) filings, wire and press releases published by and\n\nregarding Babcock & Wilcox Enterprises, Inc. (\u201cB&W\u201d or the \u201cCompany\u201d), analysts\u2019 reports and\n\nadvisories about the Company, and information readily obtainable on the Internet. Plaintiff\n\nbelieves that substantial, additional evidentiary support will exist for the allegations set forth herein\n\nafter a reasonable opportunity for discovery.\n\n\n\n\n 1\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 2 of 27. PageID #: 2\n\n\n\n\n NATURE OF THE ACTION\n\n 1. This is a federal securities class action on behalf of a class consisting of all persons\n\nand entities other than Defendants that purchased or otherwise acquired B&W securities between\n\nNovember 5, 2025 and March 11, 2026, both dates inclusive (the \u201cClass Period\u201d), seeking to\n\nrecover damages caused by Defendants\u2019 violations of the federal securities laws and to pursue\n\nremedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the \u201cExchange\n\nAct\u201d) and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials.\n\n 2. B&W, together with its subsidiaries, provides energy and emissions control\n\nsolutions to industrial, electrical utility, municipal, and other customers in the U.S., Canada, the\n\nUnited Kingdom (\u201cU.K.\u201d), Indonesia, and the Philippines.\n\n 3. B&W\u2019s largest shareholder is BRC Group Holdings, Inc. (\u201cBRC\u201d), formerly B.\n\nRiley Financial, Inc. BRC\u2019s Co-Chief Operating Officer (\u201cCEO\u201d) and Chairman of its Board of\n\nDirectors is Bryant R. Riley (\u201cRiley\u201d).\n\n 4. On November 4, 2025, B&W announced its entry into an agreement for a limited\n\nnotice to proceed\u2014that is, a preliminary agreement that envisioned a more definitive agreement\n\nin the coming months\u2014for a project to deliver power (the \u201cPower Generation LNTP\u201d) for an\n\nartificial intelligence (\u201cAI\u201d) factory owned and operated by Applied Digital Corporation (\u201cApplied\n\nDigital\u201d). Defendants repeatedly touted the purported value of the Power Generation LNTP \u201cat\n\nover $1.5 billion\u201d. Defendants did not disclose any involvement on the part of the Company\u2019s\n\nlargest shareholder, BRC.\n\n 5. Also on November 4, 2025, B&W issued a press release reporting its financial\n\nresults for the fiscal quarter ended September 30, 2025 (the \u201cQ3 Earnings Release\u201d), in which\n\nDefendant Kenneth M. Young (\u201cYoung\u201d), B&W\u2019s Chairman and CEO touted the Power\n\n\n\n 2\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 3 of 27. PageID #: 3\n\n\n\n\nGeneration LNTP\u2019s purportedly \u201cprofound\u201d1 impact on the Company\u2019s \u201cpipeline\u201d and claimed\n\nthat the eventual contract pursuant to the Power Generation LNTP \u201cwould serve as upside\u201d to the\n\nCompany\u2019s projected financial performance in the fiscal year 2026.\n\n 6. That same day, B&W entered into a sales agreement with BRC and Lake Street\n\nCapital Markets, LLC in connection with the offering of up to $200 million of the Company\u2019s\n\ncommon stock (the \u201cATM Offering\u201d), raising additional capital following the announcement of\n\nthe Power Generation LNTP.\n\n 7. On November 5, 2025, Defendants filed a prospectus on Form 424B5 with the SEC\n\nin connection with the ATM Offering (the \u201cProspectus\u201d).\n\n 8. On November 7, 2025, Defendants issued a press release (the \u201cATM Offering\n\nRelease\u201d) announcing that they had raised $67.5 million through the ATM Offering, \u201cincluding\n\napproximately $50 million from a single fundamental global institutional investor\u201d. In this press\n\nrelease, Defendants explicitly connected the ATM Offering to the Power Generation LNTP, stating\n\nthat the ATM Offering \u201cclosely follows\u201d the Power Generation LNTP. Defendants also\n\nannounced that they were pausing the ATM Offering, before reversing course less than one week\n\nlater.\n\n 9. The market responded favorably to these updates, as B&W\u2019s stock price rose over\n\n198% from $3.74 on November 4, 2025, the last trading session before the Company announced\n\nthe Power Generation LNTP and issued the Q3 Earnings Release, to $11.15, on February 3, 2026.\n\n 10. BRC acted quickly to take advantage of B&W\u2019s inflated stock price. On February\n\n11, 2026, BRC, related entities BRF Investments, LLC and B. Riley Securities, Inc., and Riley,\n\nBRC Co-CEO and Chairman, filed a statement of changes in beneficial ownership on Form 4 with\n\n\n\n1\n All emphases herein added unless otherwise indicated.\n 3\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 4 of 27. PageID #: 4\n\n\n\n\nthe SEC, disclosing that BRC sold its entire directly-held position in B&W common stock valued\n\nat approximately $10.4 million. BRC executed this sale at a stock price of $9, which was 140%\n\ngreater than B&W\u2019s closing stock price on November 4, 2025, the last trading session before the\n\nCompany announced the Power Generation LNTP and issued the Q3 Earnings Release.\n\n 11. On March 4, 2026, B&W issued a press release (the \u201cPower Generation Contract\n\nRelease\u201d) announcing it had \u201creceived full notice to proceed on a $2.4 billion design-build\n\nagreement with Base Electron, an independent power producer (\u201cIPP\u201d) backed by Applied\n\nDigital . . . to deliver project 1.2 gigawatts (GW) of new generation capacity\u201d (the \u201cPower\n\nGeneration Contract\u201d).\n\n 12. The market responded favorably to this news, as well. B&W\u2019s stock price rose\n\n$3.70, or 45%, to close at $11.80 on March 4, 2026.\n\n 13. Defendants repeatedly touted the purported value of the Power Generation Contract\n\nas evidence that B&W\u2019s backlog2 was robust, and that demand for B&W\u2019s products and services\n\nwas strong. However, Defendants did not disclose that if Base Electron defaulted on its obligations\n\nunder the purportedly $2.4 billion agreement, Applied Digital could unilaterally terminate its\n\nguarantee of Base Electron\u2019s obligations under the agreement for as little as $50 million.\n\n 14. Throughout the Class Period, Defendants made materially false and misleading\n\nstatements regarding the Company\u2019s business, operations, and prospects. Specifically, Defendants\n\nmade false and/or misleading statements and/or failed to disclose that: (i) B&W\u2019s largest\n\nshareholder, BRC, stood on both sides of the Power Generation Contract and had close ties to\n\n\n\n\n2\n When reporting its financial results, B&W regularly reports on \u201cbookings and backlog\u201d, which\nB&W describes as \u201cour measures of remaining performance obligations under our sales\ncontracts.\u201d According to B&W, \u201c[m]anagement believes these metrics provide investors, lenders\nand other users of our financial statements with a leading indicator of future revenues.\u201d\n 4\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 5 of 27. PageID #: 5\n\n\n\n\nB&W\u2019s counterparty; (ii) Applied Digital did not need the products and services that B&W would\n\npurportedly supply pursuant to the Power Generation LNTP and Contract; (iii) the foregoing, at\n\nthe very least, would raise questions about the parties\u2019 actual intent behind entering into the Power\n\nGeneration LNTP and Contract, including whether the Company is likely to recognize revenues\n\nfrom these agreements; (iv) accordingly, the business and financial prospects of the Company were\n\noverstated; and (v) as a result, Defendants\u2019 public statements were materially false and misleading\n\nat all relevant times.\n\n 15. The truth began to emerge on March 12, 2026, when Wolfpack Research\n\n(\u201cWolfpack\u201d) published a short report alleging that B&W had failed to disclose the close\n\nrelationship between its largest shareholder, BRC, and Base Electron, B&W\u2019s counterparty to the\n\nPower Generation Contract: Base Electron\u2019s directors included BRC Co-CEO and Chairman\n\nRiley, and Base Electron\u2019s registered address matched that of BRC\u2019s headquarters, not Applied\n\nDigital\u2019s. Moreover, Wolfpack alleged that Applied Digital did not need the products and services\n\nthat B&W would purportedly provide pursuant to the Power Generation Contract, and that \u201cthe\n\nultimate purpose of this deal may be to provide exit liquidity for [BRC]\u201d. Taken together, the\n\nWolfpack report\u2019s contentions called into question whether B&W was likely to recognize revenues\n\nfrom the Power Generation Contract.\n\n 16. Following publication of the Wolfpack report, B&W\u2019s stock price fell $1.71 per\n\nshare, or 11.59%, to close at $13.05 per share on March 12, 2026.\n\n 17. As a result of Defendants\u2019 wrongful acts and omissions, and the precipitous decline\n\nin the market value of the Company\u2019s securities, Plaintiff and other Class members have suffered\n\nsignificant losses and damages.\n\n\n\n\n 5\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 6 of 27. PageID #: 6\n\n\n\n\n JURISDICTION AND VENUE\n\n 18. The claims asserted herein arise under and pursuant to Sections 10(b) and 20(a) of\n\nthe Exchange Act (15 U.S.C. \u00a7\u00a7 78j(b) and 78t(a)) and Rule 10b-5 promulgated thereunder by the\n\nSEC (17 C.F.R. \u00a7 240.10b-5).\n\n 19. This Court has jurisdiction over the subject matter of this action pursuant to 28\n\nU.S.C. \u00a7 1331 and Section 27 of the Exchange Act.\n\n 20. Venue is proper in this District pursuant to Section 27 of the Exchange Act (15\n\nU.S.C. \u00a7 78aa) and 28 U.S.C. \u00a7 1391(b). B&W is headquartered in this District, Defendants\n\nconduct business in this District, and a significant portion of Defendants\u2019 actions took place within\n\nthis District.\n\n 21. In connection with the acts alleged in this complaint, Defendants, directly or\n\nindirectly, used the means and instrumentalities of interstate commerce, including, but not limited\n\nto, the mails, interstate telephone communications, and the facilities of the national securities\n\nmarkets.\n\n PARTIES\n\n 22. Plaintiff, as set forth in the attached Certification, acquired B&W securities at\n\nartificially inflated prices during the Class Period and was damaged upon the revelation of the\n\nalleged corrective disclosures.\n\n 23. Defendant B&W is a Delaware corporation with principal executive offices located\n\nat 1200 East Market Street, Suite 650, Akron, Ohio 44305. The Company\u2019s common stock, 6.50%\n\nsenior notes due 2026, and 7.75% Series A cumulative perpetual preferred stock trade in an\n\nefficient market on the New York Stock Exchange (\u201cNYSE\u201d) under the ticker symbols \u201cBW\u201d,\n\n\u201cBWNB\u201d, and \u201cBW PRA\u201d, respectively.\n\n\n\n 6\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 7 of 27. PageID #: 7\n\n\n\n\n 24. Defendant Young has served as B&W\u2019s Chairman and CEO at all relevant times.\n\n 25. Defendant Cameron Frymyer (\u201cFrymyer\u201d) has served as B&W\u2019s Executive Vice\n\nPresident and Chief Financial Officer at all relevant times.\n\n 26. Defendants Young and Frymyer are collectively referred to herein as the\n\n\u201cIndividual Defendants\u201d.\n\n 27. The Individual Defendants possessed the power and authority to control the\n\ncontents of B&W\u2019s SEC filings, press releases, and other market communications. The Individual\n\nDefendants were provided with copies of B&W\u2019s SEC filings and press releases alleged herein to\n\nbe misleading prior to or shortly after their issuance and had the ability and opportunity to prevent\n\ntheir issuance or to cause them to be corrected. Because of their positions with B&W, and their\n\naccess to material information available to them but not to the public, the Individual Defendants\n\nknew that the adverse facts specified herein had not been disclosed to and were being concealed\n\nfrom the public, and that the positive representations being made were then materially false and\n\nmisleading. The Individual Defendants are liable for the false statements and omissions pleaded\n\nherein.\n\n 28. B&W and the Individual Defendants are collectively referred to herein as\n\n\u201cDefendants.\u201d\n\n SUBSTANTIVE ALLEGATIONS\n\n Background\n\n 29. B&W, together with its subsidiaries, provides energy and emissions control\n\nsolutions to industrial, electrical utility, municipal, and other customers in the U.S., Canada, the\n\nU.K., Indonesia, and the Philippines.\n\n\n\n\n 7\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 8 of 27. PageID #: 8\n\n\n\n\n 30. B&W\u2019s largest shareholder is BRC, formerly B. Riley Financial, Inc. BRC\u2019s Co-\n\nCEO and Chairman is Riley.\n\n Materially False and Misleading Statements Issued During the Class Period\n\n 31. The Class Period begins on November 5, 2025. On November 4, 2025, during post-\n\nmarket hours, B&W issued a press release announcing that it \u201chas further solidified its entry into\n\nthe AI Data Center power supply market\u201d, including an its entry into the Power Generation LNTP,\n\nwhich preceded entry into the Power Generation Contract. The press release stated further, inter\n\nalia, that Defendants valued the project that this agreement concerned \u201cat over $1.5 billion\u201d:\n\n B&W is . . . announcing an agreement for a limited notice to proceed for a project\n valued at over $1.5 billion to deliver one gigawatt of power for an [Applied Digital]\n AI Factory. Full contract release is anticipated in the first quarter of 2026.\n\n B&W plans to design and install the plant\u2019s four 300-megawatt natural gas-fired\n power plants consisting of proven boilers and associated steam turbines. The plant\n is targeted to begin operation in 2028. B&W also expects to sign an ongoing parts\n and services contract to support the facility once commercial operation begins.\n\n 32. The same day, also during post-market hours, B&W issued the Q3 Earnings\n\nRelease, in which Defendants prominently highlighted the purported value of the Power\n\nGeneration LNTP, stating inter alia that the Company \u201c[s]igned limited notice to proceed for a\n\nmore than $1.5 billion contract with Applied Digital to deliver and install one gigawatt of efficient\n\nenergy for AI Data Center project.\u201d\n\n 33. The Q3 Earnings Release quoted Defendant Young as touting the Power Generation\n\nLNTP\u2019s purportedly \u201cprofound\u201d impact to the Company\u2019s \u201cpipeline\u201d, stating inter alia:\n\n \u201cThis initial project with Applied Digital represents an exciting and\n transformational opportunity to broaden B&W\u2019s customer base as the Company\n expands into the rapidly evolving AI Data Center space,\u201d said Kenneth Young,\n B&W Chairman and Chief Executive Officer. \u201cThe impact from this deal on\n B&W is profound, adding over $3 billion to our pipeline which brings our total\n global pipeline to over $10 billion. It also marks a natural next step for our\n\n\n\n 8\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 9 of 27. PageID #: 9\n\n\n\n\n Company, which has been a global leader in designing and deploying reliable and\n efficient steam generation systems for nearly 160 years.\u201d\n\n 34. The Q3 Earnings Release also quoted Defendant Young as stating that the Power\n\nGeneration LNTP, \u201cwhen contracted, would serve as upside\u201d to B&W\u2019s anticipated financial\n\nperformance in the then-upcoming fiscal year, stating inter alia:\n\n [W]e anticipate 2026 Adjusted EBITDA from our core business in the range of $70\n million to $85 million, showing significant sequential growth over 2025. This\n range does not include any AI Data Center projects, which, when contracted,\n would serve as upside to this forecast. B&W\u2019s recent data center project with\n Applied Digital demonstrates the core strengths of our Company, including our\n ability to provide reliable and efficient power generation solutions to our customers,\n and our extensive engineering, construction and project management experience.\n We remain optimistic about the significant upside across our business through\n the remainder of 2025 and into 2026 due to expected increases in parts and\n services revenue, as well as known data center projects in our pipeline. We\n believe this extended demand for our technology and services continues to\n position us for sustained success and provides B&W with a strong outlook\n moving forward.\n\n 35. Later in the Q3 Earnings Release, it again quoted Defendant Young reiterating\n\nB&W\u2019s future prospects enjoyed a \u201cstrong foundation . . . to grow in the remainder of 2025 and\n\nbeyond\u201d, pointing in part to the \u201cglobal pipeline\u201d of \u201cover $10.0 billion\u201d, again referencing the\n\npurported impact of the Power Generation LNTP:\n\n We are seeing strong global demand for our diverse portfolio of technologies and\n as a result of recent data center opportunities, our global pipeline has increased\n to over $10.0 billion. We continue to make progress on converting this pipeline of\n identified project opportunities into bookings, as displayed by our strong base\n business and backlog results this quarter. We expect industry tailwinds and\n generation demand to continue to increase in the coming years, and we believe\n these tailwinds, coupled with our higher margins and improved cash flows, provide\n a strong foundation for B&W to grow in the remainder of 2025 and beyond.\n\n 36. The market reacted positively to the news Defendants shared with the market on\n\nNovember 4, 2025. On November 5, 2025, B&W\u2019s stock price rose $1.06, or approximately\n\n22.1%, to close at $3.74.\n\n\n\n 9\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 10 of 27. PageID #: 10\n\n\n\n\n 37. Defendants acted quickly to seize upon the positive news they released on\n\nNovember 4, 2025. That same day, B&W entered into a sales agreement with BRC and Lake\n\nStreet Capital Markets, LLC in connection with the ATM Offering of up to $200 million of the\n\nCompany\u2019s common stock.\n\n 38. On November 5, 2025, Defendants filed the Prospectus in connection with the\n\nATM Offering.\n\n 39. On November 7, 2025, Defendants issued the ATM Offering Release, announcing\n\nthat they had raised $67.5 million through the ATM Offering, \u201cincluding approximately $50\n\nmillion from a single fundamental global institutional investor\u201d. In this press release, Defendants\n\nstated that \u201cthe Company has elected to pause further sales under the ATM [Offering] at this time,\n\nhaving achieved its immediate capital objectives. Defendants explicitly connected the ATM\n\nOffering to the Power Generation LNTP, stating inter alia:\n\n Babcock & Wilcox Enterprises, Inc., (\u201cB&W,\u201d or the \u201cCompany\u201d) (NYSE: BW) a\n leader in energy technology and solutions, announced today it has raised $67.5\n million including approximately $50 million from a single fundamental global\n institutional investor, through its at-the-market (ATM) offering that opened on\n November 5, 2025. This closely follows the recently announced Limited Notice\n to Proceed (LNTP) awarded to B&W in connection with a project valued at over\n $1.5 billion to design and install one gigawatt of electric power for an AI Factory\n and Data Center.\n\n 40. Also in the ATM Offering Release, Defendant Young again alluded to Defendants\u2019\n\n\u201csignificant project pipeline\u201d, in apparent reference to the Power Generation LNTP, stating inter\n\nalia:\n\n The rapid execution of this offering \u2013 raising $67.5 million in just two days \u2013\n reflects the market\u2019s recognition of B&W\u2019s unique position to provide technology,\n services and solutions to meet the growing energy needs of AI factories and data\n centers, utilities and industrial customers around the world. With our strong\n financial position, we are well-positioned to execute on our significant project\n pipeline and continue to deliver value to our shareholders.\n\n\n\n 10\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 11 of 27. PageID #: 11\n\n\n\n\n 41. On November 10, 2025, B&W filed a quarterly report on Form 10-Q with the SEC,\n\nproviding further detail on the financial results Defendants announced in the Q3 Earnings Release.\n\nAlso on that date, B&W held a conference call to discuss the financial results detailed in the Q3\n\nForm 10-Q (the \u201cQ3 Earnings Call\u201d). Defendant Young claimed that the project would have a\n\n\u201c$1.5 billion\u201d value \u201conce finalized\u201d, and described \u201cthe impact from this deal\u201d as \u201cprofound,\n\nadding $3 billion to $5 billion in AI data center opportunities in our pipeline\u201d: stating inter alia:\n\n We are pleased to announce that we have signed a limited notice to proceed with\n Applied Digital to begin work for the delivery and installation of natural gas\n technology that will provide 1 gigawatt of efficient energy for an AI factory and\n data center project. The total project valued at full notice to proceed will be over\n $1.5 billion in total once finalized, and we anticipate that full notice to proceed to\n be released in the next few months.\n\n As a part of this deal, B&W plans to design and install 4 300-megawatt natural gas-\n fired power plants consisting of proven boilers and associated steam turbines to\n support Applied Digital\u2019s AI factory. The plant is targeted to begin operation in\n 2028. This technology carries equal efficiency as simple cycle turbines and can be\n operational much faster than combined or simple cycle power plant options. The\n impact from this deal on B&W is profound, adding $3 billion to $5 billion in AI\n data center opportunities in our pipeline.\n\n 42. During Defendant Frymer\u2019s prepared remarks on the Q3 Earnings Call, he echoed\n\nDefendant Young\u2019s claim that the Company\u2019s guidance for fiscal year 2026 did not include any\n\nimpact from the Power Generation LNTP, stating inter alia: \u201cAs Kenny stated earlier, we have\n\nannounced our 2026 full year adjusted EBITDA target range of $70 million to $85 million\n\nstemming from our core business, which does not take into account any growth related to data\n\ncenters.\u201d\n\n 43. Defendant Frymer also told investors that despite their earlier representation that\n\nthey would \u201cpause\u201d the ATM Offering, Defendants had resolved to resume it, stating inter alia:\n\n\u201c[A]lthough we said on Friday that we would be pausing sales under the ATM program, we\u2019ve\n\n\n\n\n 11\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 12 of 27. PageID #: 12\n\n\n\n\ndecided to resume ATM sales and intend to sell shares under the ATM program opportunistically\n\nbased on market conditions and our share price.\u201d\n\n 44. During the question and answer portion of the Q3 Earnings Call, several analysts\n\nasked questions concerning the Power Generation LNTP. In response to one of these questions,\n\nasking \u201chow [Defendants] see potential contribution from a timing and margin perspective moving\n\nforward,\u201d Defendant Young indicated that BW could recognize between 10% and 15% of the\n\nprojected $1.5 billion value of the Power Generation LNTP\u2014i.e., $100 and $225 million in\n\nrevenue\u2014during the fiscal year 2026, \u201csignificant upside\u201d to the guidance Defendants provided\n\nthe market, stating inter alia:\n\n As far as revenue recognition goes and margin recognition, obviously, we\u2019re a POC\n shop under that. It will depend on timing of when we can apply the cost to the\n project into next year. Some of that will be based on the final notice to proceed and\n the time frame there. So it\u2019s a little bit vague and it won\u2019t be terribly much, I\n would say, in \u201826. I don\u2019t know, I\u2019m just throwing out a number, maybe 10%,\n 15% of the value would be realized then. The bulk of it would \u2014 based on the\n accounting method would be realized more in the \u201827 and obviously \u201828.\n\n So we\u2019ve \u2014 based on the fact that we\u2019re still finalizing that NTP and our guidance\n next year, we have not included this project or any other data center projects in\n that $70 million to $85 million range. So this would represent complete upside\n and probably significant upside to any number that we would be putting out right\n now.\n\n 45. Another analyst asked Defendants whether the purported $1.5 billion value of the\n\nPower Generation LNTP was \u201call within B&W\u2019s scope,\u201d given that \u201cit\u2019s a massive potential uptick\n\nto the backlog that you have today,\u201d to which Defendant Young affirmed that it did, that\n\nDefendants would complete construction necessary to provide Applied Digital\u2019s \u201cAI Factory\u201d with\n\npower pursuant to their eventual contract, and that the \u201ctotal value could be higher depending on\n\nfinal scope\u201d, stating inter alia:\n\n [T]hat $1.5 billion would anticipate and represent BW scope as associated with\n this project, right? B&W would bring all of the aspects and elements of the boiler\n\n 12\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 13 of 27. PageID #: 13\n\n\n\n\n and the steam capabilities plus the construction aspect, right? We have our own\n construction company here in the U.S. So it would be blended with construction,\n the steam turbines and the boiler aspect of it. And then we\u2019ll work through some\n of the other elements to complete the plant on time and on schedule. We\u2019ll work\n with Applied on that. So we put it as over $1.5 billion at that site. The total value\n could be higher depending on final scope, and we\u2019ll just have to work through\n that. But I wanted to give some idea and indication of what it looks like from a\n B&W perspective. So we intended that to be our scope. The scope of the project\n would be a little bit larger under that scenario, but we\u2019ll work with them to complete\n that once we have the NTP finalized.\n\n 46. On February 11, 2026, BRC, related entities BRF Investments, LLC and B. Riley\n\nSecurities, Inc., and Riley, BRC Co-CEO and Chairman, filed a statement of changes in beneficial\n\nownership on Form 4 with the SEC, disclosing that BRC sold its entire directly-held position in\n\nB&W common stock, valued at approximately $10.4 million. BRC executed this sale at a stock\n\nprice of $9, which was 140% greater than B&W\u2019s closing stock price on November 4, 2025, the\n\nlast trading session before the Company announced the Power Generation LNTP and issued the\n\nQ3 Earnings Release.\n\n 47. On March 4, 2026, B&W issued the Power Generation Contract Release\n\nannouncing it had \u201creceived full notice to proceed on a $2.4 billion design-build agreement with\n\nBase Electron, an independent power producer (\u201cIPP\u201d) backed by Applied Digital . . . to deliver\n\nproject 1.2 gigawatts (GW) of new generation capacity\u201d. Also on March 4, 2026, the Company\n\nfiled a current report on Form 8-K with the SEC, stating that the $2.4 billion agreement with \u201cBase\n\nElectron, Inc., an Applied Digital Company . . . supersedes and replaces the limited notice to\n\nproceed previously disclosed by the Company\u201d.\n\n 48. The Power Generation Contract Release quoted Defendant Young as touting the\n\npurported $2.4 billion value of the Power Generation Contract, stating inter alia, that \u201c[r]eceiving\n\nfull notice to proceed for this $2.4 billion project further underscores the strategic role B&W plays\n\nin supporting the rapidly expanding power needs of large\u2011scale AI data centers,\u201d and that \u201c[t]his\n\n 13\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 14 of 27. PageID #: 14\n\n\n\n\ncontract further reinforces our commitment to providing technologies that meet the urgent demand\n\nfor reliable and secure power.\u201d\n\n 49. Notably, the press release announcing the Power Generation Contract represented\n\nthat Base Electron was a \u201cnewly formed independent power producer that was founded by the\n\nteam at Applied Digital,\u201d and described Base Electron as \u201cbacked by Applied Digital\u201d. At no\n\npoint in the Defendants did not disclose the connection between Base Electron and B&W\u2019s largest\n\nshareholder, BRC, and BRC\u2019s Co-CEO and Chairman, Riley.\n\n 50. Also on March 4, 2026, B&W issued a press release reporting its financial results\n\nfor the fiscal quarter and year ended December 31, 2025 (the \u201cQ4 Press Release\u201d). Among other\n\nitems, Defendants highlighted the Power Generation Contract, its purported $2.4 billion value and\n\nits purported impact to the Company\u2019s \u201cbacklog\u201d: \u201cSigned full notice to proceed for a $2.4 billion\n\nAI data center project; . . . Continuing Operations Backlog of $2.8 billion, including the $2.4\n\nbillion data center project; . . . Backlog of $2.8 million with the inclusion of recent data cetner\n\nproject, a 470% increase compared to the end of 2024.\u201d\n\n 51. The Q4 Release also quoted Defendant Young as touting the Company\u2019s purported\n\nbacklog following the Power Generation Contract, and claiming that showed, in part the strength\n\nof demand for the Company\u2019s products and services, stating inter alia:\n\n We have rightsized our balance sheet, reduced our debt, and continued to develop\n a robust pipeline and backlog supplemented by innovative new partnerships. We\n saw significant year-over-year increases in adjusted EBITDA and our core parts &\n services across 2025, indicating that the strategic actions we have implemented are\n delivering measurable bottom-line results. We continue to make progress in\n converting our global pipeline of identified project opportunities and we believe\n these results reflect a strong global demand for our technologies, underpinning\n our pipeline and outlook for sustained growth as we move into 2026.\n\n Building on our strong financial results, our announcement of full notice to\n proceed on our project with Base Electron is an exciting step forward as B&W\n further expands into power generation for the rapidly evolving AI Data Center\n\n 14\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 15 of 27. PageID #: 15\n\n\n\n\n space . . . . The increasing need for power and electricity to support artificial\n intelligence and data center growth have become key drivers for momentum across\n our broad range of technologies. As a result of this surging demand, our global\n pipeline remains robust, exceeding $12.0 billion in project opportunities, after\n previously converting the $2.4 billion data center project from pipeline to backlog.\n\n 52. Like the Power Generation Contract Release, the Q4 Earnings Release did not\n\ndisclose the connection between B&W\u2019s counterparty to the purported $2.4 billion agreement,\n\nBase Electron, and both B&W\u2019s largest shareholder, BRC, and BRC\u2019s Co-CEO and Chairman of\n\nits Board, Riley.\n\n 53. Finally, also on March 4, 2026, B&W filed a Current Report on Form 8-K\n\nconcerning the Power Generation Contract (the \u201cMarch 4 8-K\u201d), disclosing that, of the Power\n\nGeneration Contract\u2019s purported $2.4 billion value, approximately $434 million was a fixed fee.\n\nThe remaining $1.96 billion was not guaranteed and was comprised of \u201cVariable Charges . . .\n\nbased on work performed\u201d and \u201ccertain other amounts payable under the Definitive Agreement\u201d,\n\nwhich the Company declined to disclose for another five weeks, when it would file its quarterly\n\nreport on Form 10-Q for the fiscal quarter ended March 31, 2026.\n\n 54. Like the Power Generation Contract Release and the Q4 Earnings Release, the\n\nMarch 4 8-K did not disclose the connection between B&W\u2019s counterparty to the purported $2.4\n\nbillion agreement, Base Electron, and B&W\u2019s largest shareholder, BRC, and BRC\u2019s Co-CEO and\n\nChairman of its Board, Riley.\n\n 55. In the Current Report on Form 8-K that Applied Digital filed concerning the Power\n\nGeneration Contract, Applied Digital used more conditional terms to describe this agreement,\n\nstating inter alia that B&W would \u201cpotentially supply[] power to [Applied Digital\u2019s] data center\n\ncampuses under future separate power supply agreements. This Form 8-K also disclosed that\n\nApplied Digital had guaranteed Base Electron\u2019s performance of its obligations under the Power\n\n\n\n 15\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 16 of 27. PageID #: 16\n\n\n\n\nGeneration Contract, ostensibly including its obligation to pay up to $2.4 billion to B&W for\n\nproducts and services rendered pursuant to the Power Generation Contract, but Applied Digital\n\ncould discharge this sizable obligation by paying B&W as little as $50 to $100 million. This\n\nForm 8-K stated, inter alia:\n\n On February 26, 2026, Applied Digital Corporation (\u201cApplied Digital\u201d or the\n \u201cCompany\u201d) entered into a Guarantee (the \u201cGuarantee\u201d) in favor of The Babcock\n & Wilcox Company (NYSE: BW) (\u201cB&W\u201d), pursuant to which Applied Digital\n has agreed to unconditionally and irrevocably guarantee the full and timely\n performance by Base Electron, Inc. (\u201cBase Electron\u201d) of its obligations under that\n certain Design-Build Agreement, dated February 26, 2026, by and between Base\n Electron and B&W (the \u201cDesign-Build Agreement\u201d). . . .\n\n Pursuant to the terms of the Guarantee, if Base Electron fails to perform any of its\n obligations under the Design-Build Agreement, the Company would be required,\n upon written demand by B&W, to perform such obligations or cause such\n obligations to be performed, including payment and specific performance. . . .\n\n [T]he Company may, in its sole discretion, terminate the Guarantee and all of its\n existing and future obligations thereunder upon occurrence of any one of the\n following events, (i) the listing of Base Electron\u2019s equity securities on a national\n securities exchange, (ii) the consummation by Base Electron of a financing\n transaction resulting in gross proceeds of at least $50 million (provided that Base\n Electron is current in its payments to B&W), or (iii) the payment by the Company\n of a termination fee equal to either $50 million (if paid by August 1, 2026 and\n Base Electron is current in its payments to B&W) or $100 million.\n\n 56. The statements referenced in \u00b6\u00b6 31\u201335, 39\u201345, 47\u201354 were materially false and\n\nmisleading because Defendants made false and/or misleading statements, as well as failed to\n\ndisclose material adverse facts about the Company\u2019s business, operations, and prospects.\n\nSpecifically, Defendants made false and/or misleading statements and/or failed to disclose that:\n\n(i) B&W\u2019s largest shareholder, BRC, stood on both sides of the Power Generation Contract and\n\nhad close ties to B&W\u2019s counterparty; (ii) Applied Digital did not need the products and services\n\nthat B&W would purportedly supply pursuant to the Power Generation LNTP and Contract;\n\n(iii) the foregoing, at the very least, would raise questions about the parties\u2019 actual intent behind\n\n\n\n 16\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 17 of 27. PageID #: 17\n\n\n\n\nentering into the Power Generation LNTP and Contract, including whether the Company is likely\n\nto recognize revenues from these agreements; (iv) accordingly, the business and financial\n\nprospects of the Company were overstated; and (v) as a result, Defendants\u2019 public statements were\n\nmaterially false and misleading at all relevant times.\n\n The Truth Begins to Emerge\n\n 57. The truth began to emerge on March 12, 2026, when Wolfpack published a short\n\nreport alleging that B&W had failed to disclose the close relationship between its largest\n\nshareholder, BRC, and Base Electron, B&W\u2019s counterparty to the Power Generation Contract.\n\nWolfpack\u2019s report also alleged that Applied Digital did not need the products and services that\n\nB&W would purportedly provide pursuant to the Power Generation Contract, and that \u201cthe\n\nultimate purpose of this deal may be to provide exit liquidity for [BRC]\u201d. Wolfpack cited as\n\nevidence the $10.4 million sale of B&W Stock that BRC reported on February 13, 2026, as alleged\n\nsupra \u00b6 46. Taken together, the Wolfpack report\u2019s contentions called into question whether B&W\n\nwas likely to recognize revenues from the Power Generation Contract.\n\n 58. The Wolfpack report specifically stated that when Defendants first announced the\n\nPower Generation Contract, they omitted key details concerning the relationship between BRC\n\nand B&W\u2019s counterparty, Base Electron. First, while Defendants\u2019 March 4 8-K stated that Base\n\nElectron was \u201cfounded by the team at Applied Digital\u201d, it omitted that BRC Co-CEO and\n\nChairman of the Board of Directors Bryant Riley was also one of Base Electron\u2019s directors.\n\nSecond, while the March 4 8-K stated that Base Electron was an Applied Digital subsidiary, it\n\nomitted that Base Electron\u2019s registered address matched that of BRC\u2019s headquarters, not Applied\n\nDigital\u2019s. Third, Base Electron\u2019s articles of incorporation were not filed until December 23, 2025,\n\nseven weeks after Defendants announced the Power Generation LNTP. The counterparty to the\n\n\n\n 17\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 18 of 27. PageID #: 18\n\n\n\n\neventual Power Generation Contract did not even exist when the Power Generation LNTP was\n\nsigned.\n\n 59. Wolfpack\u2019s report also undermined the contention that Applied Digital even needed\n\nthe products and services that B&W would purportedly offer pursuant to the Power Generation\n\nLNTP and Contract. Wolfpack explained that Applied Digital\u2019s \u201cmore established\u201d data center\n\nprojects had already secured power through conventional grid agreements, and its review of\n\nApplied Digital\u2019s representations during relevant local government meetings concerning its\n\nprospective projects \u201csuggests both will rely on existing grid power, consistent with its established\n\ncampuses\u201d, rather than any new power plants that Defendants would purportedly construct.\n\nMoreover, Applied Digital could unilaterally terminate its guarantee of Base Electron\u2019s obligations\n\non the purportedly $2.4 billion Power Generation Contract for as little as $50 million.\n\n 60. Taken together, the Wolfpack report\u2019s contentions called into question whether\n\nDefendants entered into the Power Generation LNTP and Contract for the benefit of B&W,\n\nparticularly given that BRC stood on both sides of the transaction, with BRC Co-CEO and\n\nChairman Riley a Base Electron director upon its December 23, 2025 founding, and capitalized on\n\nthe increase in B&W\u2019s stock price following announcement of the Power Generation LNTP by\n\nselling its entire directly-held position valued at approximately $10.4 million. BRC executed this\n\nsale at a stock price of $9, which was 140% greater than B&W\u2019s closing stock price on November\n\n4, 2025, the last trading session before the Company announced the Power Generation LNTP and\n\nissued the Q3 Earnings Release. The Wolfpack report also called into question whether B&W is\n\nlikely to recognize revenue from the Power Generation LNTP and Contract, given that Applied\n\nDigital\u2019s power supply needs were already met and it could terminate its guarantee of Base\n\nElectron\u2019s obligations for as little as $50 million.\n\n\n\n 18\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 19 of 27. PageID #: 19\n\n\n\n\n 61. Following publication of Wolfpack\u2019s report, B&W\u2019s stock price fell $1.71 per\n\nshare, or 11.59%, to close at $13.05 per share on March 12, 2026.\n\n 62. As a result of Defendants\u2019 wrongful acts and omissions, and the precipitous decline\n\nin the market value of the Company\u2019s securities, Plaintiff and other Class members have suffered\n\nsignificant losses and damages.\n\n SCIENTER ALLEGATIONS\n\n 63. During the Class Period, Defendants had both the motive and opportunity to\n\ncommit fraud. For example, during the Class Period, while disseminating the materially false and\n\nmisleading statements alleged herein to maintain artificially inflated prices for B&W securities,\n\nDefendants enriched themselves by closing the ATM Offering for $67.5 million, before reopening\n\nit less than one week later, as alleged supra \u00b6\u00b6 37, 39, 43. They also had actual knowledge of the\n\nmisleading nature of the statements they made, or acted in reckless disregard of the true\n\ninformation known to them at the time. Defendants repeatedly touted the purported $2.4 billion\n\nvalue of the Power Generation Contract, as alleged supra \u00b6\u00b6 47\u201348, 50\u201351, despite being aware\n\nthat Applied Digital could discharge its obligation to guarantee Base Electron\u2019s performance under\n\nthe Power Generation Contract for as little as $50 million, as alleged supra \u00b6 55. In so doing,\n\nDefendants participated in a scheme to defraud and committed acts, practices, and participated in\n\na course of business that operated as a fraud or deceit on purchasers of the Company\u2019s securities\n\nduring the Class Period.\n\n PLAINTIFF\u2019S CLASS ACTION ALLEGATIONS\n\n 64. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil\n\nProcedure 23(a) and (b)(3) on behalf of a Class, consisting of all those who purchased or otherwise\n\nacquired B&W securities during the Class Period (the \u201cClass\u201d); and were damaged upon the\n\n\n\n 19\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 20 of 27. PageID #: 20\n\n\n\n\nrevelation of the alleged corrective disclosures. Excluded from the Class are Defendants herein,\n\nthe officers and directors of the Company, at all relevant times, members of their immediate\n\nfamilies and their legal representatives, heirs, successors or assigns and any entity in which\n\nDefendants have or had a controlling interest.\n\n 65. The members of the Class are so numerous that joinder of all members is\n\nimpracticable. Throughout the Class Period, B&W securities were actively traded on the NYSE.\n\nWhile the exact number of Class members is unknown to Plaintiff at this time and can be\n\nascertained only through appropriate discovery, Plaintiff believes that there are hundreds or\n\nthousands of members in the proposed Class. Record owners and other members of the Class may\n\nbe identified from records maintained by B&W or its transfer agent and may be notified of the\n\npendency of this action by mail, using the form of notice similar to that customarily used in\n\nsecurities class actions.\n\n 66. Plaintiff\u2019s claims are typical of the claims of the members of the Class as all\n\nmembers of the Class are similarly affected by Defendants\u2019 wrongful conduct in violation of\n\nfederal law that is complained of herein.\n\n 67. Plaintiff will fairly and adequately protect the interests of the members of the Class\n\nand has retained counsel competent and experienced in class and securities litigation. Plaintiff has\n\nno interests antagonistic to or in conflict with those of the Class.\n\n 68. Common questions of law and fact exist as to all members of the Class and\n\npredominate over any questions solely affecting individual members of the Class. Among the\n\nquestions of law and fact common to the Class are:\n\n \u2022 whether the federal securities laws were violated by Defendants\u2019 acts as alleged\n herein;\n\n\n\n\n 20\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 21 of 27. PageID #: 21\n\n\n\n\n \u2022 whether statements made by Defendants to the investing public during the Class\n Period misrepresented material facts about the business, operations and\n management of B&W;\n\n \u2022 whether the Individual Defendants caused B&W to issue false and misleading\n financial statements during the Class Period;\n\n \u2022 whether Defendants acted knowingly or recklessly in issuing false and misleading\n financial statements;\n\n \u2022 whether the prices of B&W securities during the Class Period were artificially\n inflated because of the Defendants\u2019 conduct complained of herein; and\n\n \u2022 whether the members of the Class have sustained damages and, if so, what is the\n proper measure of damages.\n\n 69. A class action is superior to all other available methods for the fair and efficient\n\nadjudication of this controversy since joinder of all members is impracticable. Furthermore, as the\n\ndamages suffered by individual Class members may be relatively small, the expense and burden\n\nof individual litigation make it impossible for members of the Class to individually redress the\n\nwrongs done to them. There will be no difficulty in the management of this action as a class action.\n\n 70. Plaintiff will rely, in part, upon the presumption of reliance established by the fraud-\n\non-the-market doctrine in that:\n\n \u2022 Defendants made public misrepresentations or failed to disclose material facts\n during the Class Period;\n\n \u2022 the omissions and misrepresentations were material;\n\n \u2022 B&W securities are traded in an efficient market;\n\n \u2022 the Company\u2019s shares were liquid and traded with moderate to heavy volume\n during the Class Period;\n\n \u2022 the Company traded on the NYSE and was covered by multiple analysts;\n\n \u2022 the misrepresentations and omissions alleged would tend to induce a reasonable\n investor to misjudge the value of the Company\u2019s securities; and\n\n\n\n\n 21\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 22 of 27. PageID #: 22\n\n\n\n\n \u2022 Plaintiff and members of the Class purchased, acquired and/or sold B&W\n securities between the time the Defendants failed to disclose or misrepresented\n material facts and the time the true facts were disclosed, without knowledge of\n the omitted or misrepresented facts.\n\n 71. Based upon the foregoing, Plaintiff and the members of the Class are entitled to a\n\npresumption of reliance upon the integrity of the market.\n\n 72. Alternatively, Plaintiff and the members of the Class are entitled to the presumption\n\nof reliance established by the Supreme Court in Affiliated Ute Citizens of the State of Utah v.\n\nUnited States, 406 U.S. 128, 92 S. Ct. 2430 (1972), as Defendants omitted material information in\n\ntheir Class Period statements in violation of a duty to disclose such information, as detailed above.\n\n COUNT I\n\n (Violations of Section 10(b) of the Exchange Act and Rule 10b-5 Promulgated Thereunder\n Against All Defendants)\n\n 73. Plaintiff repeats and re-alleges each and every allegation contained above as if fully\n\nset forth herein.\n\n 74. This Count is asserted against Defendants and is based upon Section 10(b) of the\n\nExchange Act, 15 U.S.C. \u00a7 78j(b), and Rule 10b-5 promulgated thereunder by the SEC.\n\n 75. During the Class Period, Defendants engaged in a plan, scheme, conspiracy and\n\ncourse of conduct, pursuant to which they knowingly or recklessly engaged in acts, transactions,\n\npractices and courses of business which operated as a fraud and deceit upon Plaintiff and the other\n\nmembers of the Class; made various untrue statements of material facts and omitted to state\n\nmaterial facts necessary in order to make the statements made, in light of the circumstances under\n\nwhich they were made, not misleading; and employed devices, schemes and artifices to defraud in\n\nconnection with the purchase and sale of securities. Such scheme was intended to, and, throughout\n\nthe Class Period, did: (i) deceive the investing public, including Plaintiff and other Class members,\n\nas alleged herein; (ii) artificially inflate and maintain the market price of B&W securities; and (iii)\n 22\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 23 of 27. PageID #: 23\n\n\n\n\ncause Plaintiff and other members of the Class to purchase or otherwise acquire B&W securities\n\nand options at artificially inflated prices. In furtherance of this unlawful scheme, plan and course\n\nof conduct, Defendants, and each of them, took the actions set forth herein.\n\n 76. Pursuant to the above plan, scheme, conspiracy and course of conduct, each of the\n\nDefendants participated directly or indirectly in the preparation and/or issuance of the quarterly\n\nand annual reports, SEC filings, press releases and other statements and documents described\n\nabove, including statements made to securities analysts and the media that were designed to\n\ninfluence the market for B&W securities. Such reports, filings, releases and statements were\n\nmaterially false and misleading in that they failed to disclose material adverse information and\n\nmisrepresented the truth about B&W\u2019s finances and business prospects.\n\n 77. By virtue of their positions at B&W, Defendants had actual knowledge of the\n\nmaterially false and misleading statements and material omissions alleged herein and intended\n\nthereby to deceive Plaintiff and the other members of the Class, or, in the alternative, Defendants\n\nacted with reckless disregard for the truth in that they failed or refused to ascertain and disclose\n\nsuch facts as would reveal the materially false and misleading nature of the statements made,\n\nalthough such facts were readily available to Defendants. Said acts and omissions of Defendants\n\nwere committed willfully or with reckless disregard for the truth. In addition, each Defendant\n\nknew or recklessly disregarded that material facts were being misrepresented or omitted as\n\ndescribed above.\n\n 78. Information showing that Defendants acted knowingly or with reckless disregard\n\nfor the truth is peculiarly within Defendants\u2019 knowledge and control. As the senior managers\n\nand/or directors of B&W, the Individual Defendants had knowledge of the details of B&W\u2019s\n\ninternal affairs.\n\n\n\n 23\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 24 of 27. PageID #: 24\n\n\n\n\n 79. The Individual Defendants are liable both directly and indirectly for the wrongs\n\ncomplained of herein. Because of their positions of control and authority, the Individual\n\nDefendants were able to and did, directly or indirectly, control the content of the statements of\n\nB&W. As officers and/or directors of a publicly-held company, the Individual Defendants had a\n\nduty to disseminate timely, accurate, and truthful information with respect to B&W\u2019s businesses,\n\noperations, future financial condition and future prospects. As a result of the dissemination of the\n\naforementioned false and misleading reports, releases and public statements, the market price of\n\nB&W securities was artificially inflated throughout the Class Period. In ignorance of the adverse\n\nfacts concerning B&W\u2019s business and financial condition which were concealed by Defendants,\n\nPlaintiff and the other members of the Class purchased or otherwise acquired B&W securities at\n\nartificially inflated prices and relied upon the price of the securities, the integrity of the market for\n\nthe securities and/or upon statements disseminated by Defendants, and were damaged thereby.\n\n 80. During the Class Period, B&W securities were traded on an active and efficient\n\nmarket. Plaintiff and the other members of the Class, relying on the materially false and misleading\n\nstatements described herein, which the Defendants made, issued or caused to be disseminated, or\n\nrelying upon the integrity of the market, purchased or otherwise acquired shares of B&W securities\n\nat prices artificially inflated by Defendants\u2019 wrongful conduct. Had Plaintiff and the other\n\nmembers of the Class known the truth, they would not have purchased or otherwise acquired said\n\nsecurities, or would not have purchased or otherwise acquired them at the inflated prices that were\n\npaid. At the time of the purchases and/or acquisitions by Plaintiff and the Class, the true value of\n\nB&W securities was substantially lower than the prices paid by Plaintiff and the other members of\n\nthe Class. The market price of B&W securities declined sharply upon public disclosure of the\n\nfacts alleged herein to the injury of Plaintiff and Class members.\n\n\n\n 24\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 25 of 27. PageID #: 25\n\n\n\n\n 81. By reason of the conduct alleged herein, Defendants knowingly or recklessly,\n\ndirectly or indirectly, have violated Section 10(b) of the Exchange Act and Rule 10b-5\n\npromulgated thereunder.\n\n 82. As a direct and proximate result of Defendants\u2019 wrongful conduct, Plaintiff and the\n\nother members of the Class suffered damages in connection with their respective purchases,\n\nacquisitions and sales of the Company\u2019s securities during the Class Period, upon the disclosure\n\nthat the Company had been disseminating misrepresented financial statements to the investing\n\npublic.\n\n COUNT II\n\n (Violations of Section 20(a) of the Exchange Act Against the Individual Defendants)\n\n 83. Plaintiff repeats and re-alleges each and every allegation contained in the foregoing\n\nparagraphs as if fully set forth herein.\n\n 84. During the Class Period, the Individual Defendants participated in the operation\n\nand management of B&W, and conducted and participated, directly and indirectly, in the conduct\n\nof B&W\u2019s business affairs. Because of their senior positions, they knew the adverse non-public\n\ninformation about B&W\u2019s misstatement of income and expenses and false financial statements.\n\n 85. As officers and/or directors of a publicly owned company, the Individual\n\nDefendants had a duty to disseminate accurate and truthful information with respect to B&W\u2019s\n\nfinancial condition and results of operations, and to correct promptly any public statements issued\n\nby B&W which had become materially false or misleading.\n\n 86. Because of their positions of control and authority as senior officers, the Individual\n\nDefendants were able to, and did, control the contents of the various reports, press releases and\n\npublic filings which B&W disseminated in the marketplace during the Class Period concerning\n\n\n\n 25\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 26 of 27. PageID #: 26\n\n\n\n\nB&W\u2019s results of operations. Throughout the Class Period, the Individual Defendants exercised\n\ntheir power and authority to cause B&W to engage in the wrongful acts complained of herein. The\n\nIndividual Defendants, therefore, were \u201ccontrolling persons\u201d of B&W within the meaning of\n\nSection 20(a) of the Exchange Act. In this capacity, they participated in the unlawful conduct\n\nalleged which artificially inflated the market price of B&W securities.\n\n 87. Each of the Individual Defendants, therefore, acted as a controlling person of B&W.\n\nBy reason of their senior management positions and/or being directors of B&W, each of the\n\nIndividual Defendants had the power to direct the actions of, and exercised the same to cause,\n\nB&W to engage in the unlawful acts and conduct complained of herein. Each of the Individual\n\nDefendants exercised control over the general operations of B&W and possessed the power to\n\ncontrol the specific activities which comprise the primary violations about which Plaintiff and the\n\nother members of the Class complain.\n\n 88. By reason of the above conduct, the Individual Defendants are liable pursuant to\n\nSection 20(a) of the Exchange Act for the violations committed by B&W.\n\n PRAYER FOR RELIEF\n\n WHEREFORE, Plaintiff demands judgment against Defendants as follows:\n\n A. Determining that the instant action may be maintained as a class action under Rule\n\n23 of the Federal Rules of Civil Procedure, and certifying Plaintiff as the Class representative;\n\n B. Requiring Defendants to pay damages sustained by Plaintiff and the Class by reason\n\nof the acts and transactions alleged herein;\n\n C. Awarding Plaintiff and the other members of the Class prejudgment and post-\n\njudgment interest, as well as their reasonable attorneys\u2019 fees, expert fees and other costs; and\n\n D. Awarding such other and further relief as this Court may deem just and proper.\n\n\n\n 26\n\f Case: 5:26-cv-00886-SL Doc #: 1 Filed: 04/14/26 27 of 27. PageID #: 27\n\n\n\n\n DEMAND FOR TRIAL BY JURY\n\n Plaintiff hereby demands a trial by jury.\n\nDated: April 14, 2026 Respectfully submitted,\n\n DITTMER, WAGONER & STEELE, LLC\n\n /s/ Robert J. Wagoner\n Robert J. Wagoner (0068991)\n 107 W. Johnstown Road\n Gahanna, Ohio 43230\n Telephone: (614) 471-8181\n Facsimile: (614) 540-7473\n Email: bob@dwslaw.com\n\n POMERANTZ LLP\n Jeremy A. Lieberman\n (pro hac vice application forthcoming)\n J. Alexander Hood II\n (pro hac vice application forthcoming)\n 600 Third Avenue, 20th Floor\n New York, New York 10016\n Telephone: (212) 661-1100\n Facsimile: (917) 463-1044\n jalieberman@pomlaw.com\n ahood@pomlaw.com\n\n Attorneys for Plaintiff\n\n\n\n\n 27\n\f","ocr_status":2,"date_upload":"2026-04-15T07:18:41.295116-07:00","document_number":"1","attachment_number":null,"pacer_doc_id":"141014249752","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Complaint","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/475888891/","id":475888891,"tags":[],"absolute_url":"/docket/73191647/1/1/cho-v-babcock-wilcox-enterprises-inc/","date_created":"2026-04-15T07:18:35.223939-07:00","date_modified":"2026-04-15T07:18:35.223949-07:00","sha1":"","page_count":1,"file_size":63128,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":1,"pacer_doc_id":"141014249753","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Schedule A for Babcock & Wilcox Enterprises, Inc.","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/475888892/","id":475888892,"tags":[],"absolute_url":"/docket/73191647/1/2/cho-v-babcock-wilcox-enterprises-inc/","date_created":"2026-04-15T07:18:35.277300-07:00","date_modified":"2026-04-15T07:18:35.277313-07:00","sha1":"","page_count":2,"file_size":105350,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":2,"pacer_doc_id":"141014249754","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Certification of Caleb Cho","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/475888893/","id":475888893,"tags":[],"absolute_url":"/docket/73191647/1/3/cho-v-babcock-wilcox-enterprises-inc/","date_created":"2026-04-15T07:18:35.294874-07:00","date_modified":"2026-04-15T07:18:35.294885-07:00","sha1":"","page_count":3,"file_size":1079642,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":3,"pacer_doc_id":"141014249755","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Civil Cover Sheet","acms_document_guid":""}],"date_created":"2026-04-14T20:24:49.567860-07:00","date_modified":"2026-04-24T00:07:36.785627-07:00","date_filed":"2026-04-14","time_filed":"22:27:03","entry_number":1,"recap_sequence_number":"2026-04-14.001","pacer_sequence_number":5,"description":"Class Action Complaint with jury demand against All Defendants. Filing fee paid $ 405, Receipt number AOHNDC-13624248.. Filed by Caleb Cho. (Attachments: # 1 Schedule A for Babcock & Wilcox Enterprises, Inc., # 2 Certification of Caleb Cho, # 3 Civil Cover Sheet) (Wagoner, Robert) (Entered: 04/14/2026)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=73191647&page_size=40"}