Brady v. LAC, Inc.

72 F.R.D. 22, 1976 U.S. Dist. LEXIS 14372
CourtDistrict Court, S.D. New York
DecidedJune 29, 1976
DocketNo. 75 Civ. 1700
StatusPublished
Cited by16 cases

This text of 72 F.R.D. 22 (Brady v. LAC, Inc.) 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
Brady v. LAC, Inc., 72 F.R.D. 22, 1976 U.S. Dist. LEXIS 14372 (S.D.N.Y. 1976).

Opinion

OPINION

BONSAL, District Judge.

Plaintiff John Brady (“Brady”), an alleged purchaser of securities of SaCom, a California corporation specializing in the development and manufacturing of electronic equipment for the communications and public safety markets, brings this action on behalf of all purchasers of securities of SaCom during the period from February 1, 1972 to May 1, 1973 alleging a scheme, joined in by all defendants who are broker-dealer firms or principal officers of the firms, to distribute the common stock of [25]*25SaCom at artificially inflated prices in violation of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act of 1934”), 15 U.S.C. § 78j(b) and Rules 10b-5 and 10b-6 thereunder, 17 C.F.R. §§ 10b-5, 10b-6.1 The action arises out of the various alleged acts of the defendants in connection with the public offering of 200,000 shares of common stock of SaCom on-October 31, 1972 and the subsequent trading in SaCom stock. In particular, Brady alleges that the defendants violated the Exchange Act of 1934 by artificially inflating the price of SaCom securities through the dissemination of false and misleading information in the registration statement which became effective October 31, 1972; the publication of artificial price quotations in the inter-dealer quotation media or “pink sheets”; the bidding for and purchasing of SaCom stock during the distribution; the withholding of material information concerning SaCom’s actual and projected sales and earnings, merger and acquisition negotiations; and the manipulation of the market in SaCom securities (See Complaint ¶¶ 18-25). Named defendants include LAC, Inc. (“LAC”), Rollin F. Perry (“Perry”), A. P. Montgomery & Co., Inc. (“Montgomery”), Richard S. Friedman (“Friedman”), Torpie & Saltzman, Inc., James V. Torpie, David I. Saltzman, NDF Securities, Inc., Mitchum, Jones & Templeton, Inc., Sterling Grace & Co., Inc., Pitfield Mackay & Co., Inc., Mack Bushnell & Edelman, Inc., and Henry F. Swift & Co. (“Swift”).

Brady has moved pursuant to Fed.R.Civ.P. 23(c)(1) and Local Rule 11A for an order certifying this action as a class action. By stipulation filed November 19, 1975, the parties consented to the intervention of Don J. Robertson (“Robertson”) as a party plaintiff. It was further agreed that Brady’s motion for class certification would be deemed to have been made on behalf of both plaintiffs.

The defendants oppose the motion for certification as a class action and defendants Montgomery and Friedman .move pursuant to Fed.R.Civ.P. 9(b) and 12(b)(6) for an order dismissing the complaint for failure to aver the circumstances of fraud with the requisite particularity or, in the alternative, for an order pursuant to Fed.R.Civ.P. 12(c) directing the plaintiffs to serve and file a more definite statement.

Motion for Class Certification

Plaintiffs move for certification of the action as a class action on the grounds that there are questions of law and fact which are common to all class members and because the number of persons constituting the class is so large that joinder of all of them would be impracticable. Plaintiffs contend that the common questions of law and fact are the duty owed by the defendants to members of the class; the manipulation of the market in SaCom securities; the publication of artificial quotations in the “pink sheets”; the dissemination of false and misleading representations; the purchasing of stock during the distribution; the withholding of material information concerning SaCom’s financial condition; and the market impact of defendants’ activities. In essence, plaintiffs contend that the defendants engaged in a single unitary scheme or conspiracy to sell worthless SaCom stock by employing various devices in violation of the federal securities laws. In their supporting papers, plaintiffs refer to a proceeding brought by the Securities and Exchange Commission alleging similar violations against all the defendants. (See Exhibit A attached to Affidavit of Richard M. Meyer dated July 8, 1975).2 Plaintiffs submit that they personally relied upon the market price of SaCom securities in making their purchases, that the market price was manipulated by the defendants, that they [26]*26are victims of defendants’ illegal scheme, and, as such, that they are adequate representatives of the purported class of purchasers of SaCom securities from February 1, 1972 to May 1, 1973.

The defendants oppose the motion for certification on the grounds that plaintiffs are not the appropriate representatives of the purported class. In particular, the defendants contend that Brady was not a purchaser of SaCom common stock and therefore has no standing to maintain this action; that because of the unique facts surrounding Brady’s alleged “purchase” of SaCom common stock Brady is atypical of the members of the purported class; that Brady does not expect to bear the costs of maintaining this action on behalf of the purported class; and that because of the foregoing disabilities, defendants would be deprived of the effect of res judicata if judgment is in their favor and Brady is the representative of the class.

Defendants raise similar objections to Robertson as the class representative and contend that Robertson was induced to purchase SaCom stock through the oral representations of defendant Perry, the president of LAC’s corporate finance department, and that oral representations are insufficient to sustain a class action. Felton v. Walston & Co., CCH Fed.Sec.L.Rep., ¶ 95,320 (S.D.N.Y.1975). Moreover, defendants contend that common questions of law and fact do not predominate and that class certification is inappropriate.

Defendants also contend that the purported class consists of several subclasses with separate and distinct interests which cannot be represented adequately by plaintiffs. Defendant Swift, for instance, contends that its sole activity in connection with SaCom stock was its participation as a junior member of an underwriting syndicate headed by Laidlaw & Co., Inc., predecessor of defendant LAC, in connection with the public offering of SaCom common stock on October 31, 1972. Consequently, Swift contends that the action may be maintained as a class action against Swift only on behalf of a subclass consisting of persons who purchased SaCom stock pursuant to the public offering of October 31, 1972.

Defendants Montgomery and Friedman further contend that plaintiffs’ complaint is insufficient to support the allegations of fraud against them and that class action status should not be granted.

Since plaintiffs seek certification of their class action under Fed.R.Civ.P. 23(b)(3), they must fulfill the four requirements of Rule 23(a). in addition to the requirements of Rule 23(b)(3).3 Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); Aboudi v. Daroff, 65 F.R.D. 388 (S.D.N.Y.1974).

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Bluebook (online)
72 F.R.D. 22, 1976 U.S. Dist. LEXIS 14372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-lac-inc-nysd-1976.