Aboudi v. Daroff

65 F.R.D. 388, 19 Fed. R. Serv. 2d 809, 1974 U.S. Dist. LEXIS 11360
CourtDistrict Court, S.D. New York
DecidedDecember 31, 1974
DocketNo. 72 Civ. 1118
StatusPublished
Cited by34 cases

This text of 65 F.R.D. 388 (Aboudi v. Daroff) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aboudi v. Daroff, 65 F.R.D. 388, 19 Fed. R. Serv. 2d 809, 1974 U.S. Dist. LEXIS 11360 (S.D.N.Y. 1974).

Opinion

OPINION

PIERCE, District Judge.

Plaintiff Yacob Aboudi has brought this action charging various defendants in a single count with violations of the federal securities laws, specifically Section 10(b) of the 1934 Exchange Act and Rule 10b-5 thereunder. The defendants are Botany Industries, Inc. [Botany],1 certain individuals who served as its officers and directors during the period at issue [the individual defendants],2 and S. D. Leidesdorf & Co. [Leidesdorf], auditors for Botany. Plaintiff alleges that during the period between December 10, 1969 and March 14, 1972 the defendants were responsible for issuing and disseminating certain financial statements and reports which falsely represented Botany’s financial position and future prospects. 3 It is alleged that these actions falsely inflated the market prices and apparent value of Botany’s securities during this period and that as a result Botany stock was sold to the public at artificially inflated prices to the damage of plaintiff and those he seeks to represent.

Plaintiff Aboudi is alleged to have purchased 100 shares of Botany common stock on the American Stock Exchange, on or about March 9, 1971, at the then prevailing market price of $9,125 per share. This case is presently [390]*390before the Court for consideration of plaintiff’s motion for an order declaring that the suit may be maintained as a class action on behalf of those persons who suffered loss or damage by reason of having purchased Botany common stock during the period from December 10, 1969 through March 14, 1972.

To be allowed to maintain an action on behalf of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, a plaintiff must meet the four requirements of Rule 23(a) as well as the requirements of Rule 23(b)(3).4 These requirements, as they relate to the present action, will be considered seriatim.

Rule 23(a)(1). Plaintiff estimates that the number of purchasers during the proposed class period is between 5,000 and 7,500 persons. The estimate is based on the fact that the trading volume of Botany’s common stock during the period, as reported by Standard and Poors American Stock Exchange index, was approximately 1,500,000 shares and the assumption that the average trade involved 200 to 300 shares. The accuracy of this estimate has not been disputed. Considerably smaller classes have been found to meet the test of numerosity. See, e. g., Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972); Wolfson v. Solomon, 54 F.R.D. 584, 591 (S.D.N.Y.1972). The Court finds adequate basis for a conclusion that the proposed class of persons is so numerous that joinder of all members would be impractical.

Rule 23(a)(2). Many of defendants’ threshold objections to the adequacy of plaintiff’s showing that there are common questions of law and fact have been obviated by the filing of an amended complaint, January 4, 1974. In the amended complaint, plaintiff specifically identifies those documents and statements which he alleges portrayed a falsely favorable and optimistic picture of Botany’s financial condition and prospects.5

Defendants’ primary argument is that because of the number of different documents and events plaintiff has relied on to establish the alleged misconduct, there are not questions of law or fact common to all members of the class. However, the fact that plaintiff has not chosen to rely on a single misrepresentation or on a single document containing several misrepresentations cannot serve to defeat his class action claim. See Fischer v. Kletz, 41 F.R.D. 377 (S.D.N.Y.1966). Where, as here, it is alleged that a series of reports and statements containing interrelated and cumulative misleading data were issued to the investing public, [391]*391a course of conduct is presented which raises questions common to all those who purchased during the period when the data was being disseminated. See Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964); Fischer v. Kletz, supra; Kronenberg v. Hotel Governor Clinton, Inc., 41 F.R.D. 42 (S.D.N.Y.1966). These questions include the ■ issues of whether during the period at issue Botany’s reported earnings were overstated and its financial condition misrepresented and whether the market price of Botany’s common stock was inflated as a result of the actions charged.

The Court finds the requirement of Rule 23(a) (2) has been satisfied.

Rule 23(a)(3). Defendants assert that plaintiff’s claim cannot be typical of the claims of the class, as required by this subsection, because during the period from December 10, 1969 to March 14, 1972 the market price of Botany stock fluctuated considerably. Defendant Leidesdorf has identified what it claims are four distinct periods of market activity: a declining market, an indecisive market, a rising • market, and another declining market.6 All defendants claim that Aboudi, who purchased during the third period when the price of the stock was at its peak, cannot assert claims which are typical of those who purchased during the indecisive or declining markets when a fortiori the circumstances must have been substantially different.

While this argument has an initial appeal, it contains a fundamental flaw. The course of action of the stock is not equivalent to the course of action of the defendants. It is the latter which is important in determining this class action motion. Plaintiff’s claim is that the reports and statements of defendants throughout the entire period were false and misleading, that these reports and statements were related to one another, and that as a result of these related actions, the market price of Botany’s stock was inflated above its true value at every point throughout the period, regardless of what that price happened to be or in which direction it happened to be moving at any particular time. To properly plead such a course of conduct, plaintiff need not show any relationship between the alleged misstatements of any one time period and the market activity of another. Viewed in terms of the alleged common and continuous scheme and activity of the defendants, it is clear to the Court that plaintiff’s claims are typical of those of the proposed class.

The decisions relied on by defendants in support of the contrary conclusion are distinguishable. In Richland v. Cheatham, 272 F.Supp. 148 (S.D.N.Y.1967), plaintiffs in five separate actions sought to represent persons who purchased the stock of defendant Georgia-Pacific during a period extending from February 1963 through March 1965 or April 1966. There, however, the Court found that in' reality the claims were brought on behalf of persons who had purchased within or near one of four distinct one or two-month time' periods during which [392]*392price manipulation was alleged to have occurred. See id. at 150-151. The plaintiffs had not pleaded one manipulation throughout the period. See id. at 153.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Intelligroup Securities Litigation
527 F. Supp. 2d 262 (D. New Jersey, 2007)
In re Health Management, Inc.
184 F.R.D. 40 (E.D. New York, 1999)
In re Scott Paper Co. Securities Litigation
142 F.R.D. 611 (E.D. Pennsylvania, 1992)
In re Texas International Securities Litigation
114 F.R.D. 33 (W.D. Oklahoma, 1987)
Shamberg v. Ahlstrom
111 F.R.D. 689 (D. New Jersey, 1986)
Krome v. Merrill Lynch & Co., Inc.
637 F. Supp. 910 (S.D. New York, 1986)
In re Unioil Securities Litigation
107 F.R.D. 615 (C.D. California, 1985)
Somerville v. Major Exploration, Inc.
102 F.R.D. 500 (S.D. New York, 1984)
Gordon v. Hunt
98 F.R.D. 573 (S.D. New York, 1983)
Dura-Bilt Corp. v. Chase Manhattan Corp.
89 F.R.D. 87 (S.D. New York, 1981)
Piel v. National Semiconductor Corp.
86 F.R.D. 357 (E.D. Pennsylvania, 1980)
Greene v. Emersons Ltd.
86 F.R.D. 47 (S.D. New York, 1980)
Hochschuler v. G. D. Searle & Co.
82 F.R.D. 339 (N.D. Illinois, 1978)
Folding Cartons, Inc. v. American Can Co.
79 F.R.D. 698 (N.D. Illinois, 1978)
Kane Associates v. Clifford
80 F.R.D. 402 (E.D. New York, 1978)
Rozier v. Roudebush
444 F. Supp. 861 (S.D. Georgia, 1978)
Helfand v. Cenco, Inc.
80 F.R.D. 1 (N.D. Illinois, 1977)
Lewis v. Capital Mortgage Investments
78 F.R.D. 295 (D. Maryland, 1977)
Markewich v. Adikes
76 F.R.D. 68 (E.D. New York, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
65 F.R.D. 388, 19 Fed. R. Serv. 2d 809, 1974 U.S. Dist. LEXIS 11360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aboudi-v-daroff-nysd-1974.