concurring.
I concur in the judgment of the court, but I write separately to express my concern with the treatment of jurisdiction and the scope of the majority opinion.
I turn first to the threshold question of jurisdiction. “Mandamus is an extraordinary remedy that is granted only in the exercise of sound discretion.” Miller v. French, 530 U.S. 327, 339, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (internal quotation omitted). In taking jurisdiction of the district court’s appointment of lead plaintiff in this securities class action, the majority refers, without analysis, to but one of the five factors enumerated in Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977), from which we determine the appropriateness of mandamus jurisdiction. Clearly, the majority’s simple statement that “[b]ecause ‘[t]he district court’s order raises new and important problems, [and] issues of law of first impression,’ we conclude that it is appropriate to consider the issues [by exercising our powers of mandamus]” is a failure to *740follow the law of Bauman. We have specifically stated that we are to weigh the several factors together. Bauman, 557 F.2d at 655; Wash. Pub. Utils. Group v. United States Dist. Court, 843 F.2d 319, 325 (9th Cir.1987). There are five.factors that weigh in favor of exercising our mandamus powers.”(l) The party seeking the writ has no other adequate means, such as a 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 order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impression.” Bauman, 557 F.2d at 654-55 (citations omitted).
The majority skipped to the fifth factor and held that this petition for mandamus raises an issue that is “new and important,” and of first impression in this circuit. The standards for appointing lead counsel under the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4 (PSLRA), which applies to this case, have not been determined by this circuit. As we have held before, “mandamus is particularly appropriate when we are called upon to determine the construction of a federal procedural rule in a new context.” Valenzuela-Gonzalez v. United States Dist. Court, 915 F.2d 1276, 1279 (9th Cir.1990). But we should go further and analyze the other Bauman factors.
No direct appeal may be taken from the district court’s interlocutory lead-plaintiff order, Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 231 F.3d 1215, 1218-19 (9th Cir.2000), and so it is fair to conclude that the plaintiffs do not have an adequate remedy, other than mandamus, from the district court’s order. If left uncorrected, plaintiffs are damaged by this order because they will be denied their presumptive statutory right under section 78u-4(a)(3)(B)(iii)(I)(bb) of the PSLRA to direct and oversee the litigation with their choice of counsel. We have previously found mandamus appropriate where a district court improperly denies a civil litigant his choice of trial counsel, as once the trial is over, there is no way to correct such an error on appeal. Christensen v. United States Dist. Court, 844 F.2d 694, 697 (9th Cir.1988). I also believe that the error in this case constitutes an “oftrepeated error,” as this is an approach Judge Walker consistently has taken.
Furthermore, the district court’s order appointing Quinn Barton lead plaintiff is clear error. An order is clearly erroneous if the reviewing court has a “definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); Allen v. Iranon, 283 F.3d 1070, 1076 (9th Cir.2002). As discussed later, I believe a clear procedural error was committed in this case. Thus, all of the Bau-man factors weigh in favor of mandamus jurisdiction in this case, and I agree with the majority that we ought to exercise that power.
In applying mandamus appellate jurisdiction, we review the district court’s underlying action for clear error. Z-Seven Fund, 231 F.3d at 1219-20. Clear error is present in this case because, as the majority states, the district court failed to follow the statutory procedures for appointing a lead plaintiff as they are outlined in the PSLRA. The statute requires the district judge to identify the plaintiff or group of plaintiffs with the largest financial stake in the controversy, who then presumptively become the “most adequate plaintiff.” 15 U.S.C. § 78u-4(a)(3)(B)(iii). In this case, the district court did make the initial determination that the Cavanaugh group and *741each of its members are the plaintiffs with the largest financial stake in the litigation.
I agree with the majority that the district court then significantly departed from the statute. The district court referred to the presumption as “one important element of this decision.” In re Quintus Sec. Litig., 148 F.Supp.2d 967, 972 (N.D.Cal.2001). It then made simple comparisons of the parties vying to be lead plaintiff and their respective counsel, and concluded that another party had negotiated a better fee arrangement, making the Cavanaugh group no longer the most adequate plaintiff. However, by statute, the presumption of most adequate plaintiff may be overcome only upon proof that the presumptively most adequate plaintiff “will not fairly and adequately protect the interests of the class” or “is subject to unique defenses that render such plaintiff incapable of adequately representing the class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). Thus, the district court’s comparisons of the parties and their fee arrangements were inappropriate because the question mandated by the statute is whether the presumptive lead plaintiff is adequate, not whether another prospective lead plaintiff comparatively might have made a better bargain and is somehow “more adequate.” The district court was required by the PSLRA to appoint presumptively the Cavanaugh group as lead plaintiff, and remove them from that position only after a finding that they are inadequate under 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). This the district court did not do. Based on this clear error, I believe it is appropriate for us to remand to the district court for compliance with the statutory framework of the PSLRA. That is all we need do.
The majority and I part company on the scope of our decision. The majority makes broad statements in dicta that information regarding fee arrangements between the presumptive lead plaintiff and his counsel “is relevant only to determine whether the presumptive lead plaintiffs choice of counsel is so irrational, or so tainted by self-dealing or conflict of interest, as to cause genuine and serious doubt on that plaintiffs willingness or ability to perform the functions of lead plaintiff.” I disagree, and I am unwilling to foreclose, as I think the majority does, the relevance of such information to district court’s making a determination under Rule 23. Poor fee negotiation may show an unfamiliarity with the merits of the case, or undue influence of counsel, and such evidence certainly is a concern in deciding whether a plaintiff is adequate. See, e.g., Larson v. Dumke, 900 F.2d 1363, 1367 (9th Cir.1990) (holding that “plaintiffs unfamiliarity with the litigation and unwillingness to learn about the suit” and “the degree of control exercised by the attorneys over the litigation” are factors to be considered in determining the adequacy of a securities litigation plaintiff). The district court should have latitude to consider such information within the confines of the statutory framework.
The majority also devotes part of its opinion to ruminations on the quality of the firms selected by the prospective lead plaintiffs in this case, and the fee negotiations between them. I do not think that such contemplation is appropriate for an appellate court, whose job it is to determine only whether the district court committed a “clear error,” for if the trial court’s “account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Phoenix Eng’g & Supply Inc. v. Universal Elec. Co., 104 F.3d 1137, 1141 (9th Cir.1997), quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We do not hold in this case that the parties had high(or low-) quality counsel, we hold only that the dis*742trict court should not have made such determinations for purposes of comparing the parties. The district made a procedural mistake and we remand for the court to follow the statutory mandate of the PSLRA. If the case returns, we will have adequate opportunity to evaluate the facts.
I also believe the majority exceeds the appropriate scope of our review by discussing, in footnote 22, the rights of Che-noweth, who is not a party to this appeal, and whose rights are not before us in this decision. Having decided that remand to the district court for a following of the statutory mandate in selecting lead plaintiff is required, I do not believe we need to determine what Chenoweth’s rights might be.
I therefore concur in the judgment of the court, writing separately only to emphasize my concern that the role of the district court not be improperly usurped by broad-ranging dicta.