Baffa v. Donaldson, Lufkin & Jenrette Securities Corp.

222 F.3d 52, 2000 WL 1209399
CourtCourt of Appeals for the Second Circuit
DecidedAugust 25, 2000
DocketNo. 99-7607
StatusPublished
Cited by21 cases

This text of 222 F.3d 52 (Baffa v. Donaldson, Lufkin & Jenrette Securities Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52, 2000 WL 1209399 (2d Cir. 2000).

Opinion

POOLER, Circuit Judge:

Robert Baffa (“Baffa”), Brett Baffa (“Brett”), and Mary J. Dorflinger (“Dorflinger”) appeal from orders of the United States District Court for the Southern District of New York (Constance Baker Motley, Judge) imposing sanctions on Baffa; denying Baffa’s motion for class certification; and denying Brett’s and Dorflinger’s motion to intervene as class representatives. Appellants also appeal from the order of the district court dismissing the [55]*55action for Brett’s and Dorflinger’s failure to comply with the sanctions order and failure to proceed with their individual claims.1 We conclude that the imposition of sanctions was procedurally defective and that the district court erroneously denied Brett’s motion to intervene as class representative. We vacate the order imposing sanctions and vacate the order denying Brett’s motion for intervention as class representative; affirm the orders denying Baffa’s motion for class certification; and affirm as well the denial of Dorflinger’s motion to intervene as class representative. Finally, we vacate the judgment of dismissal and remand for further proceedings consistent with this opinion.

BACKGROUND

This securities fraud action stems from allegedly false and misleading information contained in a registration statement and prospectus of Rickel Home Centers (“Rickel”). The Securities and Exchange Commission declared the Rickel prospectus effective on October 28, 1994, for an initial public offering (“IPO”) of shares of stock. On November 9, 1994, Baffa purchased shares of Rickel stock for his then minor son Brett and placed them in a Uniform Gifts to Minors Act (“UGMA”) account designated Robert Baffa, C/F/A, Brett Baffa, UGMA/NY. Soon after, the price of Rickel stock declined drastically, and Baffa sold the shares at a loss.

On January 26, 1996 Robert Baffa commenced this action against Donaldson, Lufkin & Jenrette Securities Corporation (“DLJ”), EOS Partners, L.P. (“EOS”), and General Electric Capital Corporation (“GE Capital”), as well as several officers and directors of Rickel (collectively “defendants”). At the time of the IPO, EOS and GE Capital each controlled 44.2% of Rick-el common stock and DLJ controlled 7.3% of shares. The complaint alleged principally that defendants violated Sections 11 and 15 of the Securities Exchange Act of 1933, 15 U.S.C. §§ 77k, 77o, and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t, as well as Rule 10b-5, 17 C.F.R. § 240.10b-5, by providing false and misleading financial information in the Rickel prospectus and registration papers. Baffa claimed that defendants failed to disclose in the prospectus four financial indicators — net sales, gross profit, EBIDTA (the sum of earnings before income tax [operating income] depreciation, and amortization), and operating income (loss) after debt expense — which reflected a decline in Rick-el’s business during the third quarter of 1994 and that left it “in an extremely precarious financial condition at the time of the Offering.” According to Baffa, Rickel’s poor third quarter financial showing could be deduced by reference to Rick-el’s annual 10-K Report which had been filed with the SEC on April 29, 1995. Baf-fa claimed that he and other members of the class who acquired Rickel stock suffered financial loss as a result of the defendants’ material untruths and omissions in the registration statement.

In support of a motion to dismiss dated October 19, 1996,2 defendants contended that the figures Baffa used to support his allegation that defendants concealed Rick-el’s disastrous third quarter performance did not appear in Rickel’s 1995 10-K and could not be deduced from it. Defendants DLJ and Levison set forth figures they claimed correctly represented Rickel’s net sales, gross profits, net loss, and EBIDTA in an appendix to their memorandum of [56]*56law. Defendants also served interrogatories requesting the sources for the figures Baffa used to show Rickel’s lack of profitability. On August 26, 1997, Baffa refused to answer the interrogatories. The district court ordered Baffa to respond on September 18, 1997. In responses dated September 30, 1997, Baffa admitted that the figures set forth in the complaint should be modified, set forth the proposed modifications and indicated that the numbers were derived from Rickel’s 1995 10K and 10Q forms. Baffa continued to refuse to respond to an interrogatory requesting the identity of all persons who participated in calculating its figures. Defendants consequently moved to dismiss pursuant to Rules 12(b)(6) and 37(b)(2)(C) of the Federal Rules of Civil Procedure. On October 31, 1997, Baffa’s counsel finally conceded that he had “no calculations or notes” to support his original figures and was not able to “reconstruct” the calculations of the partner who drafted the complaint and had since left the law firm. That same day, Baffa moved to amend his complaint to state the allegedly more accurate figures. *

On November 14, 1997, the district court rejected defendants’ Rule 12(b)(6) and Rule 37(b)(2)(c) motion to dismiss, finding that remedy “might be too harsh.” However, Judge Motley stated:

[I]t is the court’s view that the plaintiff should be required to pay by way of a sanction the defendants’ attorneys’ fees with respect to this matter of trying to get the correct information as to the figures relied on; in other words, discovery failure sanction, and the sanction which appears to remedy the intentional withholding of the proper information.

The court instructed defendants to calculate fees related to “failure to disclose the inaccuracy of the original numbers ... and failure to fully answer the interrogatories on September 30th 1997.” Judge Motley also permitted plaintiff to amend the complaint to reflect revised financial figures. Defendants moved to dismiss the amended complaint on December 9, 1997, and the district court denied that motion on January 20, 1998. By means of a letter dated February 13, 1998, the parties informed the district court that they had agreed that Baffa would pay $45,000 in fees to defendants to compensate them for costs incurred in responding to the original complaint and moving to compel plaintiffs to answer the interrogatories.

On April 3, 1998, the district court denied Baffa’s motion for class certification, which he initially made December 15, 1997, on grounds that “1) The Rule 11 sanction renders plaintiff an atypical and inadequate class representative; [and] 2) Plaintiff is an atypical and inadequate representative because he is not a member of the class.” Defendants had argued that Baffa lacked standing because he placed the shares in a UGMA account for Brett who, because he is now an adult, controls the shares and incurred the loss. The court ordered plaintiff to substitute another plaintiff by May 4,1998.

Mary Dorflinger and Brett Baffa moved to intervene as class representatives on May 4, 1998. Dorflinger, the owner of a securities brokerage firm in Dallas, Texas, bought shares of Rickel stock in August, 1995 as well as later in 1996.

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222 F.3d 52, 2000 WL 1209399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baffa-v-donaldson-lufkin-jenrette-securities-corp-ca2-2000.