AAL High Yield Bond Fund v. Ruttenberg

229 F.R.D. 676, 2005 U.S. Dist. LEXIS 22153, 2005 WL 1983670
CourtDistrict Court, N.D. Alabama
DecidedAugust 11, 2005
DocketNo. CIV.A.2:00-CV1404UWC
StatusPublished
Cited by7 cases

This text of 229 F.R.D. 676 (AAL High Yield Bond Fund v. Ruttenberg) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AAL High Yield Bond Fund v. Ruttenberg, 229 F.R.D. 676, 2005 U.S. Dist. LEXIS 22153, 2005 WL 1983670 (N.D. Ala. 2005).

Opinion

CLASS CERTIFICATION OPINION

CLEMON, Chief Judge.

In this securities action, the named Plaintiffs have moved for certification of a plaintiff class and a defendant class, pursuant to Fed. R.Civ.P. 23(b)(3). (Doc. 215.) For the reasons that follow, the Court finds and concludes that a plaintiff class is due to be certified on the claims brought under Section 10(b) of the 1935 Securities Act and Securities and Exchange Commission (“SEC”) Rule 10(b)(5), as well as the claims of a subclass of primary investors brought under § 12(a)2 of the Securities Act of 1933. In all other respects, the class certification motion is due to be denied.

I. The Relevant Facts

Named Plaintiffs, AAL High Yield Bond Fund and Delaware Delchester Fund (collectively, “Plaintiffs”), filed this putative class action against shoe retailer, Just for Feet, Inc. (“JFF”); its independent auditor, Deloitte & Touche; its lead underwriter, Banc of America Securities (“BAS”); Harold Ruttenberg, Chairman of the Board of Directors (“the Board”), President, Chief Executive Officer (“CEO”), and the major stockholder of JFF; and Randall L. Haines, Director, member of the Board’s Audit Committee, and President of Compass Bank — one of JFF’s principal lenders during the relevant period.

Plaintiffs are institutional investors who purchased high-yield corporate debentures or “Notes” — i.e., “junk bonds,” issued by JFF on or about April 12, 1999.1 The Notes [679]*679offering was not registered with the SEC, purportedly based on its exempt status as a private offering to qualified institutional investors.

Plaintiffs allege that the Notes contained false and misleading financial statements which, among other things, overstated revenues, understated expenses, and failed to account for over $50 million in obsolete and outdated inventory. Plaintiffs claim that but for the fraud, the Notes would have not come to the market, and that the Notes were worthless at the time they were sold. Plaintiffs further allege that after the initial offering, Defendants continued to disseminate false and misleading statements concerning the Notes until JFF filed for bankruptcy in November of 1999.

In their Amended Complaint,2 Plaintiffs maintain that the actions of Defendants violated Sections 12(a)(1), 12(a)(2) and 15 of the Securities Act of 1933; Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. Plaintiffs also allege that the Defendants committed fraud under Alabama law. (Compl. §§ 266-303.) According to Plaintiffs, the Defendants’ fraud 1) “created the market” in which some of them purchased the Notes in the initial offering, and 2) caused “fraud on the market” as to those Plaintiffs who thereafter purchased the Notes in the secondary market at inflated prices.

The Plaintiffs and class members have settled their claims against all of the named Defendants, with the exception of Defendant BAS.

As to remaining Defendant BAS, Plaintiffs allege that BAS knew of JFF’s accounting irregularities as a consequence of its due diligence investigation, but nonetheless allowed the Note Offering to proceed. Plaintiffs contend that BAS held itself out to prospective investors as the source of verification of the information contained in the Offering Memorandum, and that it was the guarantor of the veracity of the statements in the Offering Memorandum.

While the precise number of plaintiff class members is presently unknown, eighty-eight (88) individuals or entities who purchased the JFF Notes in the defined class period filed proofs of claim against the Settling Defendants. It is clear that the number of putative class members exceeds these eighty-eight individuals. (See R. 157, Burke Aff. H12; R. 150, Def. BAS’s Br. 3 n.3.) The median claim of the class members who filed claims against the Settling Defendants is $250,000; a fourth of those class members have claims of less than $100,000.

[680]*680The putative defendant class consists of approximately four investment banks that underwrote the Note Offering, including lead underwriter BAS.

Proposed Class Definition

The proposed plaintiff class is defined as “all persons and entities who purchased Just for Feet, Inc. (“JFF”) 11% Senior Subordinated Bonds, due 2009 (the “JFF Bonds”), between April 12, 1999, and November 3, 1999, and who have suffered a loss.”3 (R. 215, Pl.’s Mot. For Order Certifying Classes.)

II. The Rule 23(a) Requirements

An action may be certified as a class action only if the named Plaintiffs have standing and satisfy first, the four express requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a).4 In determining whether these requirements are met, the court must conduct a “rigorous analysis.” Walker v. Jim Dandy Co., 747 F.2d 1360, 1362 (11th Cir.1984)(citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Even so, the district court enjoys “broad discretion” in determining whether to certify a class. See, e.g., Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1381 (11th Cir. 1998); Ross v. Bank South, N.A., 837 F.2d 980, 991 (11th Cir.1988); Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir.1985).

A. Standing

The constitutional concept of “standing” requires the named Plaintiffs to show that they have a personal interest in the outcome of the litigation. This personal stake must exist at the commencement of the ease.5 If a claim of the named plaintiff is barred by the applicable statute of limitations, there is no personal stake and therefore the named plaintiff lacks standing to represent either herself or the putative class on that claim. City of Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir.2002).

B. Numerosity

The named representative must first show- that it is extremely difficult or inconvenient to join all members of the class. The following illustrative factors may suggest the impraeticality of joinder: 1) the size of the class, 2) the geographic dispersion of class members over multiple states, 3) difficulty in identifying class members, and 4) the inconvenience of trying individual lawsuits. 7A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1762 (3d ed.2005).

While Rule 23(a)(1) does not establish a minimal number, generally more than forty class members satisfies the numerosity requirement. Cox v. Am. Cast Iron & Pipe Co., 784 F.2d 1546, 1553 (11th Cir.1986)(quoting 3B James Wm. Moore et al., Moore’s Federal Practice U 23.05[l]n. 7 (1978)); Kilgo v.

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229 F.R.D. 676, 2005 U.S. Dist. LEXIS 22153, 2005 WL 1983670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aal-high-yield-bond-fund-v-ruttenberg-alnd-2005.