Danis v. USN Communications, Inc.

189 F.R.D. 391, 1999 U.S. Dist. LEXIS 17178, 1999 WL 993437
District Court, N.D. Illinois·Decided October 29, 1999·No. No. 98 C 7482·Published·Cited by 17 cases

Opinion

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

Lead plaintiffs Thomas Karr (“Karr”) and Jack Priesmeyer (“Priesmeyer”) sue various defendants for violation of the securities laws in connection with the sale of stock in USN Communications, • Inc. (“USN”) in 1998. Karr and Priesmeyer move to certify a plaintiff class and an underwriter defendant class pursuant to Fed.R.Civ.P. 23.

BACKGROUND

In ruling on a motion for class certification, the allegations of the complaint are taken as true. Hickey v. Great Western Mortgage Corp., 158 F.R.D. 603, 606 (N.D.Ill. 1994). Plaintiffs are purchasers of stock in USN, a telecommunications services reseller. Defendants consist of (1) certain officers and directors of USN (“the individual defendants”), (2) three firms that managed the

underwriting of USN’s initial public offering: Merrill Lynch (“Merrill”), Cowen & Company (“Cowen”), and Donaldson, Lufkin & Jenrette (“DLJ”) (collectively “the underwriter defendants”), and (3) Deloitte & Touche (“Deloitte”), USN’s auditor and technical consultant.

According to plaintiffs, defendants never intended to develop USN as a viable company or to design, develop, and implement the technical infrastructure and controls necessary to provide telecommunications services. Instead, defendants sought to “flip” USN — to take USN public, utilize the proceeds from the initial public offering to hire a sales force in order to quickly build the largest “book of business” of any reseller in the country, and to then sell USN and its account base to a larger, established telecommunications company that already had the infrastructure and control systems in place. In order to accomplish this “flip” scheme, defendants issued numerous false statements both prior to and after USN’s initial public offering that conditioned the financial markets to believe USN was experiencing impressive sales and revenue growth. These statements were allegedly false and misleading because they (1) misrepresented USN’s provisioning capabilities, billing capabilities, and technological infrastructure, (2) overstated USN’s revenues, accounts receivable, assets, and number of access lines purportedly sold and provisioned, and (3) understated USN’s allowance for doubtful accounts, expenses, and net loss. Plaintiffs claim these misrepresentations violated §§ 11 and 12 of the Securities Act of 1933, (“Securities Act”), and § 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”).

Lead plaintiffs Karr and Priesmeyer1 seek to certify and-represent a plaintiff class defined as:

all persons, other than defendants, their heirs, successors and assigns and the members of the Individual Defendants’ immediate families, who: (i) purchased USN common stock in the open market pursu[395]*395ant to the Registration Statement/Prospectus; or (ii) purchased USN common stock in the open market during the period February 4, 1998 through November 20, 1998, and who were damaged by the defendants’ violations of the federal securities laws.

Plaintiffs also seek to certify an underwriter defendant class consisting of all underwriters who participated in USN’s initial public offering pursuant to an underwriting agreement.

DISCUSSION

In order to maintain a class action, plaintiffs must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and (b). Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Rule 23(a) requires 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 (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). If these prerequisites are satisfied, the court must determine whether one of the standards of Rule 23(b) is met. Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). Here, plaintiffs argue Rule 23(b)(3) is satisfied because questions of law or fact common to the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Fed. R.Civ.P. 23(b)(3). Failure to meet any one of the requirements of Rule 23(a) or (b) precludes certification of the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.1980).

1. CERTIFICATION OF PLAINTIFF CLASS

Defendants primarily oppose certification of the plaintiff class on the grounds that Karr and-Priesmeyer do not meet Rule 23’s typicality and adequacy requirements.1 2 They argue Karr and Priesmeyer are subject to unique defenses rendering their claims atypical from those of the class and compromising their ability to adequately represent the class. Under Rule 23(a)(3)’s typicality requirement, the representative’s claims must have the “same essential characteristics as the claims of the - class at large.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). A claim is typical if it arises from the same event or course of conduct that gives rise to claims of other class members and all claims are based on the same legal theory. De La Fuente, 713 F.2d at 232 (citing H. Newberg, Class Actions § 1115(b) at 185 (1977)). The similarity of legal theory may control even where factual distinctions exist between the claims of the named representative and the other class members. De La Fuente, 713 F.2d at 232.

Defenses specific to the named representative may defeat the requirements of typicality or adequacy of the representative. J.H. Cohn & Co. v. American Appraisal Assocs., 628 F.2d 994, 999 (7th Cir.1980). The fear is that the class representative will become distracted by the existence of a defense unique to him and therefore compromise the interests of the class. See Koos v. First Nat’l Bank, 496 F.2d 1162, 1164-65 (7th Cir.1974). In order to defeat typicality or adequacy, the specific defense must be “unique, arguable and likely to usurp a significant portion of the litigant’s time and energy.” McNichols v. Loeb Rhoades & Co., 97 F.R.D. 331, 334 (N.D.Ill.1982). Nevertheless, although the existence of an arguable defense will be taken into account, the court is not required to deny certification for speculative reasons; the certification decision always remains within the sound discretion of the court. Hickey v. Great Western Mortgage Corp., 158 F.R.D. 603, 609 (N.D.Ill. 1994); Ross v. Bank South, N.A., 837 F.2d 980, 991 (11th Cir.1988), modified on other grounds, 885 F.2d 723 (11th Cir.1989).

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Danis v. USN Communications, Inc., 189 F.R.D. 391, 1999 U.S. Dist. LEXIS 17178, 1999 WL 993437 (N.D. Ill. 1999).

189 F.R.D. 391 (Danis v. USN Communications, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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