Antonson v. Robertson

141 F.R.D. 501, 1991 U.S. Dist. LEXIS 18673, 1991 WL 329554
CourtDistrict Court, D. Kansas
DecidedDecember 5, 1991
DocketCiv. A. No. 88-2567-V
StatusPublished
Cited by12 cases

This text of 141 F.R.D. 501 (Antonson v. Robertson) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Antonson v. Robertson, 141 F.R.D. 501, 1991 U.S. Dist. LEXIS 18673, 1991 WL 329554 (D. Kan. 1991).

Opinion

MEMORANDUM AND ORDER

VanBEBBER, District Judge.

This case is now before the court on plaintiffs’ motion for class certification (Doc. 13) and plaintiffs’ renewed motion for class certification (Doc. 86). The parties have conducted discovery on the issues relevant to class certification, including deposing the class representatives. Defendants have responded and oppose the motions. For the reasons stated below, plaintiffs’ motions for class certification (Docs. 13 and 86) are granted in part and denied in part.

Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiffs seek to represent as class representatives all persons or entities who purchased shares of the common stock of American Carrier, Inc., (“ACI”) during the period of June 26, 1987, through August 16, 1988 (the “class period”). Plaintiffs’ claims in Count I of plaintiffs’ amended [504]*504complaint arise under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 1 Ob-5, 17 C.F.R. 240.10b-5, promulgated thereunder by the Securities and Exchange Commission (the “SEC”). Plaintiffs have also brought pendent state law claims of negligent misrepresentation (Count II), common law fraud (Count III), and breach of fiduciary duty (Count IV). All of the named defendants were officers and/or directors of ACI during the class period.

I. FACTUAL BACKGROUND

ACI common stock was traded in the over-the-counter market and was listed on NASDAQ.1 On June 26, 1987, the beginning date of the proposed class period, ACI announced that it had executed definitive agreements for the acquisition of Smith’s Transfer Corporation, allegedly claiming that the acquisition would make ACI one of the five largest motor carrier operations in the country. On August 16, 1988, the closing date of the proposed class period, ACI announced that it was filing for Chapter 11 bankruptcy protection for one of its principal operating subsidiaries as well as another subsidiary and ceasing operation of those subsidiaries. This announcement allegedly caused the price of ACI stock to fall from $5V4 per share on August 15, 1988, to $1V2 per share on August 17, 1988. An involuntary petition for bankruptcy was filed against ACI on October 3, 1988, and ACI was ordered into bankruptcy on December 28, 1988.

Plaintiff David L. Antonson purchased 700 shares of ACI common stock at $5% per share on April 27, 1988, and sold his shares on December 28, 1988, at $1V32 per share. Plaintiff David Larkin made five separate purchases of ACI stock during the class period at between $10 per share and $4V2 per share. He also made another purchase of ACI stock after the close of the class period at $1%6 per share. Plaintiff Larkin continues to hold his ACI stock. Plaintiff John A. Halpern purchased a total of 3,000 ACI shares during the proposed class period at prices between $6V4 and $3V2 per share. He sold all of his shares after the close of the class period at $16/i6 per share. Plaintiff Dudley Ryan made three separate purchases of ACI stock during the class period at prices between $5% and $6/4 per share. He sold all of his ACI stock at $13/t6 per share after the close of the class period.

Briefly, plaintiffs allege that the defendant officers and directors filed and disseminated false and misleading SEC filings, including false and misleading annual and quarterly reports, and that defendants issued materially false and misleading information to the investing public.2 Plaintiffs contend that these acts and/or omissions caused the market price of ACI common stock to be artificially inflated throughout the class period. Plaintiffs allege that they and members of the potential class relied to their detriment on the financial and other statements made, and/or on the integrity of the market in purchasing ACI common stock at artificially inflated prices and that they suffered damages as a result of the material decline in price of ACI common stock upon public disclosure of the information which had allegedly been misrepresented or concealed.

II. DISCUSSION

For certification as a class action, an action must meet the four-prong test of Fed.R.Civ.P. 23(a), and fulfill the requirements of at least one subsection of Rule 23(b). See, e.g., Esplin v. Hirschi, 402 F.2d 94, 98 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969). Rule 23(a) provides that:

One or more members of a class may sue or be sued as representative parties [505]*505on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

These four prerequisites of Rule 23(a) are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. As stated above, the second requirement for certification is that the action fulfills the prerequisites of one subsection of Rule 23(b). In this case, plaintiffs assert a class action is maintainable under Rule 23(b)(3) which provides:

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

Defendants primarily contest the typicality of the named representatives’ claims and assert that their claims are subject to unique defenses such that common issues of fact or law do not predominate over individual questions and preclude certification of a class action.

A. Numerosity

The court finds that the requirement of numerosity under Rule 23(a)(1) is easily met in this case. As represented by the plaintiffs, ACI had 7,671,510 shares of outstanding common stock as of July 2, 1988, and over 10,000 shareholders shortly before the end of the class period. Although the class period will be limited to persons and entities who purchased shares during the class period,3 it is clear that “the number of members in the putative class makes their joinder impracticable, if not impossible.” Aguinaga v. John Morrell & Co., 602 F.Supp. 1270, 1278 (D.Kan. 1985).

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Bluebook (online)
141 F.R.D. 501, 1991 U.S. Dist. LEXIS 18673, 1991 WL 329554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antonson-v-robertson-ksd-1991.