Cooperman v. One Bancorp

136 F.R.D. 526, 1991 U.S. Dist. LEXIS 7021
District Court, D. Maine·Decided May 17, 1991·No. Civ. No. 89-0315-P·Published·Cited by 23 cases

Opinion

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, Chief Judge.

This securities fraud action is back before the Court on Plaintiffs’ motion for [528]*528class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. As discussed below, the Court grants the motion in part.

I. Background

Plaintiffs bring this action against The One Bancorp (a bank holding company), individual directors and officers of The One Bancorp, and Ernst & Young (the successor in interest to The One Bancorp’s accounting firm).1 Plaintiffs allege that in the period between March 4, 1988 and September 29, 1989 inclusive (the class period), Defendants knowingly or recklessly issued a series of materially false and misleading financial statements with respect to The One Bancorp. Plaintiffs allege that loan loss reserves in those financial statements were knowingly or recklessly set too low, giving investors a distorted view of the company’s financial health. Plaintiffs also allege that, in connection with those financial statements, Defendants knowingly or recklessly failed to disclose material adverse information concerning The One Ban-corp’s financial performance and condition. Plaintiffs claim that Defendants’ misrepresentations and nondisclosure deceived Plaintiffs and the investing public regarding The One Bancorp’s financial condition, causing Plaintiffs to purchase The One Bancorp stock at inflated prices. Plaintiffs also claim that Arthur Young, the predecessor of Defendant Ernst & Young, falsely stated in its audit opinions and reports that its examinations of The One Bancorp’s financial statements had been conducted in accordance with Generally Accepted Auditing Standards and that the financial statements fairly presented The One Bancorp’s financial position and results in accordance with Generally Accepted Accounting Principles.

Plaintiffs’ four-count Second Consolidated Amended Complaint alleges: (I) violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; (II) violations of Section 20(a) of the Securities Exchange Act of 1934; (III) common law fraud; and (IV) negligent misrepresentation.

II. Class Certification

Plaintiffs seek to prosecute this litigation as a class action. The putative class is defined as:

All persons who purchased One Ban-corp’s publicly traded securities during the period beginning on March 14, 1988 through and including September 29, 1989, and who sustained damages thereby, excluding (1) defendant Ernst & Young, its present and former partners, principals and employees, members of their immediate families, their heirs, personal representatives, successors and assigns; and (2) The One Bancorp and the individual defendants associated therewith, as well as officers and directors of One Bancorp and its subsidiaries and affiliated banks, members of their immediate families, and any employee, representative, affiliate or controlled person of One Bancorp and its subsidiaries and affiliated banks.

The Court may certify the proposed class if it is “satisfied, after a rigorous analysis, that the prerequisites of Rule -23(a) have been satisfied.” General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). Thus Plaintiffs must demonstrate that:

(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 claims or defenses of the class, and
[529]*529(4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a).

Plaintiffs must also satisfy one of the three tests set forth in Rule 23(b). Here, Plaintiffs seek to meet Rule 23(b)(3), which requires a finding “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.”2 The burden of making the requisite showings under Rule 23 rests with the movants. See Cutler v. Lewiston Daily Sun, 611 F.Supp. 746, 756 (D.Me.1985).

A. Numerosity and Commonality

Defendants3 do not dispute that the proposed class meets the numerosity requirement. The Second Consolidated Amended Complaint alleges that as of June 30, 1989, The One Bancorp had over 8,100,-000 shares of common stock outstanding and that during the class period The One Bancorp stock was actively traded on the Over-the-Counter securities market. While the Court does not have before it the exact number of persons who purchased shares during the class period, in a securities fraud action such as this the Court may “make ‘common sense assumptions’ in order to support a finding of numerosity.” Kirby v. Cullinet Software, Inc., 116 F.R.D. 303, 306 (D.Mass.1987) (citation omitted). The Court concludes that, based on the number of shares outstanding during the class period, the class is so numerous that joinder of all members is impracticable.

Likewise, there is no dispute that there are questions of law and fact common to the class. Plaintiffs allege that during the class period Defendants engaged in a scheme or common course of conduct designed to artificially inflate the price of The One Bancorp stock. In furtherance of the alleged scheme, Defendants issued a series of allegedly false and misleading financial statements. Among the common issues generated are whether Defendants engaged in such a scheme, whether The One Bancorp’s financial statements were false and misleading, the presence or absence of scienter, whether the alleged misrepresentations and omissions were material and whether they caused the stock to be traded at artificially inflated prices, and whether the market for trading The One Bancorp stock was impersonal, efficient, and well developed. The Court finds that these common issues satisfy the requirement of Rule 23(a)(2).

B. Typicality

Rule 23(a)(3) requires that the claims of the representative parties be typical of the claims of the class. The Court finds that, with the exception of Plaintiff Green, the claims of the named Plaintiffs are typical of the claims of the class.

The Court first addresses the circumstances of Plaintiff Green. The record made on this motion reveals that Green never purchased stock in The One Bancorp but, rather, that the stock purchases attrib[530]*530uted to him in the complaint were in fact made by the Jed Prouty Motel, Inc., a corporation of which Green was president. Plaintiffs represented that the corporation would be substituted for Plaintiff Green. See Plaintiffs Reply Memorandum in Support of Amended and Supplemental Motion for Class Certification at 11.

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Cooperman v. One Bancorp, 136 F.R.D. 526, 1991 U.S. Dist. LEXIS 7021 (D. Me. 1991).

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