Beale v. Edgemark Financial Corp.

164 F.R.D. 649, 1995 U.S. Dist. LEXIS 7436, 1995 WL 803577
CourtDistrict Court, N.D. Illinois
DecidedMay 26, 1995
DocketNo. 94 C 1890
StatusPublished
Cited by4 cases

This text of 164 F.R.D. 649 (Beale v. Edgemark Financial Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beale v. Edgemark Financial Corp., 164 F.R.D. 649, 1995 U.S. Dist. LEXIS 7436, 1995 WL 803577 (N.D. Ill. 1995).

Opinion

ORDER

ANDERSEN, District Judge.

On May 26,1995, Magistrate Judge Martin Ashman filed and served upon the parties his Report and Recommendation concerning plaintiff Joseph S. Beale’s (“Beale”) motion for class certification pursuant to Fed. R.Civ.P. 23. Defendants EdgeMark Financial Corporation, Roger A. Anderson and Charles Bruning (“defendants”) have filed objections to the recommendation on the class certification issue.

On July 15, 1994, Beale filed a two-Count first amended class action complaint against defendants on behalf of himself and a class defined as “all persons who sold, relinquished rights in or were deprived of ownership of shares of EdgeMark common stock on or after April 1, 1993 and on or before November 1, 1993.” In Count I, Beale alleges that defendants violated the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), by withholding material information related to the sale of EdgeMark stock. In Count II, Beale alleges the same facts under a theory of equitable fraud.

A district court must make a de novo determination of any portion of the Report and Recommendation to which specific written objection has been made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). The district court may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Id.

Specifically, defendants set forth four reasons why we should not adopt the Magistrate Judge’s Report. We disagree with defendants on all four.

First, defendants argue that there exists a “standing” and “causation” defense to one of [651]*651the individual damage claims of the class representative that is unique to him which ‘will become the focus of the litigation and detract from efforts on behalf of the other putative class members.” (Objections, at 2-3). Magistrate Judge Ashman correctly rejected this argument and concluded that “Beale’s standing as a ‘forced seller’ has been unchallenged by [defendants and this fact also means that at least part of Beale’s claim is typical of those of other class mem-bers____ For these reasons, this Court holds that on the issue of lack of standing, [defendants have no unique defense based on standing.” (R & R, at 10-11). Moreover, Magistrate Judge Ashman noted that defendants had not and could not cite any case for the proposition that a class representative’s lack of standing on only one of his claims constitutes an unique defense sufficient to render all of his claims atypical, thus defeating certification. (R & R, at 11). Accordingly, Magistrate Judge Ashman correctly held defendants have no unique defense based on standing.

Second, defendants contend that Beale is an inadequate class representative because he has “disabling conflicts of interest” involving (1) a claim by him against EdgeMark in other litigation (which has been dismissed), (2) a claim against Harris Bank in another lawsuit, and (3) a large claim against him, again in another lawsuit, by a subsidiary of EdgeMark. Defendants argue that these claims will cause the class representative to “have a natural inclination to favor his other claims over those of the putative class members.” (Objections, at 5). Further, defendants argue that Beale “will be naturally inclined to calculate the impact of every move in this litigation, including settlement discussions, on his substantial liability in the other actions.” (Objections, at 6). Magistrate Judge Ashman properly rejected these arguments and concluded, inter alia, that the suits involve “different causes of action; and ... any potential recovery against Harris Bank would not adversely affect the potentially ‘limited resources’ available to the class in this case.” (R & R, at 18). We agree with Magistrate Judge Ashman. Moreover, as Magistrate Judge Ashman indicated, this court will have to approve any settlement and will, therefore, insure that Beale does not shirk his duties as a class representative even though his individual claim may suffer.

Third, defendants claim that Beale’s adequacy as a class representative is undermined because his counsel, who represents another EdgeMark Director in another case, has failed to join that Director, Robert Podesta, as a defendant in this action. Magistrate Judge Ashman properly found, citing to Dubin v. Miller, 132 F.R.D. 269, 272-73 (D.Colo.1990), that “the evidence available at this time is insufficient to support a joinder of Podesta as a defendant and therefore [defendants’ challenge ... based on this non-joinder is not well taken at this time.” (R & R, at 17 n. 6).

Finally, defendants object to the Magistrate Judge’s Recommendation to certify the class for Count II which alleges equitable fraud under Illinois law. Defendants state that the court has “repeatedly held that actions for fraud under Illinois law are inappropriate for class certification.” We disagree. See, Weiss v. Winner’s Circle of Chicago, 1992 WL 220686 (N.D.Ill.1992); Heastie v. Community Bank of Greater Peoria, 125 F.R.D. 669, 677 (N.D.Ill.1989); In re VMS Securities Litigation, 136 F.R.D. 466, 480 (N.D.Ill.1991); Alexander v. Centrafarm Group N.V., 124 F.R.D. 178, 186 (N.D.Ill. 1988). In Weiss, Judge Holderman certified a class in an action which contained both federal and state claims. Similar to Weiss, this action contains both state and federal claims which involve the same failure to disclose or incomplete disclosure to all shareholder members of the class. Therefore, Magistrate Judge Ashman properly certified the class as to Count II.

The Magistrate Judge’s Report meticulously went through each of the four elements required under Fed.R.Civ.P. 23(a) for class certification and properly found that this action satisfies numerosity, commonality, typicality and adequacy of representation. Further, the Magistrate Judge’s Report correctly found, pursuant to Fed.R.Civ.P. 23(b)(3), that “the questions of law or fact common to the members of the class predominate over any questions affecting only indi[652]*652vidual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” (R & R, at 19).

After careful consideration of the above-referenced motion for class certification, the applicable memoranda of law, other relevant pleadings, the Magistrate Judge’s Report, and the defendant’s objections thereto, this court hereby adopts in full the Magistrate Judge’s Report and Recommendation.

Accordingly, the court orders that plaintiffs motion for class certification is granted.

It is so ordered.

Dated: August 1,1995

REPORT AND RECOMMENDATION

ASHMAN, United States Magistrate Judge.

This case is presently before the Court on Plaintiff Joseph S. Beale’s (“Beale”) motion for class certification pursuant to Fed. R.Crv.P. 23.

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Bluebook (online)
164 F.R.D. 649, 1995 U.S. Dist. LEXIS 7436, 1995 WL 803577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beale-v-edgemark-financial-corp-ilnd-1995.