DeMarco v. Lehman Bros.

222 F.R.D. 243, 2004 WL 1506242
CourtDistrict Court, S.D. New York
DecidedJuly 6, 2004
DocketNos. 03 CIV. 3470(JSR), 03 CIV. 3705(JSR), 03 CIV. 4511(JSR)
StatusPublished
Cited by17 cases

This text of 222 F.R.D. 243 (DeMarco v. Lehman Bros.) 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
DeMarco v. Lehman Bros., 222 F.R.D. 243, 2004 WL 1506242 (S.D.N.Y. 2004).

Opinion

OPINION AND ORDER

RAKOFF, District Judge.

In its recent opinion in Hevesi v. Citigroup, Inc., 366 F.3d 70 (2d Cir.2004), the Court of Appeals, citing the instant action and a similar ease before Judge Lynch, took “note that several courts in the Southern District of New York are currently grappling with the application of the fraud-on-the-market doctrine to analyst reports.” Id. at n. 9. Having so grappled, this Court concludes that the fraud-on-the-market doctrine may in certain conditions apply to analyst reports but that the plaintiffs here have failed to adduce evidence adequate to satisfy such conditions for purposes of class certification.

The allegations of the three instant consolidated actions, as further refined in the course of motion practice, describe a straightforward securities violation. Specifically, it is alleged that during the latter half of the year 2000, defendant Michael Stanek, a prominent research analyst at co-defendant Lehman Brothers, Inc., issued public reports in which he strongly recommended the purchase of the common stock of a computer software company named RealNetworks, Inc., while at the same time he privately recommended to preferred clients that they sell or “short” the stock and confessed to them that he had inflated his public recommendations because Lehman Brothers was also serving as one of RealNetworks’ investment bankers. Although at present these are no more than allegations, if true they describe a clear violation of Section 10(b) of the Securities Exchange Act, 15 U.S.C. § j(b). See DeMarco v. Lehman Bros., 309 F.Supp.2d 631 (S.D.N.Y.2004)(denying motion to dismiss).

Having survived a motion to dismiss, however, plaintiffs now seek to “up the ante” by moving to represent the class of all those who purchased RealNetworks’ stock during the period in which Stanek was making his allegedly false recommendations to the public. An obvious difficulty with this motion is that no one presently knows which of these purchasers materially relied on Stanek’s recommendations in deciding to purchase this stock. In the absence of such information, defendants argue, plaintiffs cannot satisfy such prerequisites to class action status as “numerosity,” “commonality,” and “typicality,” see Rule 23(a), Fed.R.Civ.P., let alone show that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, see Rule 23(b), Fed.R.Civ.P.

Plaintiffs respond, however, by arguing that Stanek’s allegedly false statements materially impacted the “mix of information” available to the market in pricing RealNet-works’ stock, and that such “fraud-on-the-market” is a presumptive substitute for personal reliance unless otherwise rebutted. This, they argue, is because, as the Supreme Court held in Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), “ ‘in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business. ... Misleading statements will therefore defraud purchasers of [the] stock even if the purchasers do not directly rely on the misstatements.’ ” Id. at 242, 108 S.Ct. 978, quoting Peil v. Speiser, 806 F.2d 1154, 1160-1161 (3d Cir.1986).

In Basic, the information in question was the issuer’s own statements falsely denying that it was engaged in merger talks with another company. Basic, 485 U.S. at 227, 108 S.Ct. 978. Nonetheless, plaintiffs note, the Court in Basic did not expressly limit its holding to a particular declarant or a particular kind of statement. Indeed, the Court [246]*246recognized that the manner in which information about a public company gets translated into a market price is through the intervening analyses of market professionals. Id. at 247, 108 S.Ct. 978 (“For purposes of accepting the presumption of reliance in this case, we need only believe that market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices.”)

The intervening role of research analysts and other market professionals is, indeed, critical to the pricing mechanism of the securities market, for ordinary investors frequently lack sufficient expertise to interpret the wealth of information, much of it highly technical, emanating from most public companies. Research analysts do not, however, merely digest such information and spew it out in summary form. Rather, as the very name “analyst” suggests, they interpret the data from various viewpoints and offer their more-or-less “expert” opinions as to what the data show about the prospects of the issuer and the value of its stock. Typically, as in this case, they also provide recommendations as to what action the ordinary investor should take with respect to the stock, such as “buy,” “sell,” “hold,” etc.

Although, as discussed infra, such opinions and recommendations may vary widely among different analysts, and while no reasonable investor may suppose that any given analyst can guarantee future results, see In re Merrill Lynch & Co. Research Reports Sec. Litig., 273 F.Supp.2d 351, 358 (S.D.N.Y.2003)(Pollack, J.), a reasonable investor is entitled to assume that the analyst is providing his honest opinion, rather than, as here alleged, lying in order to manipulate the market for the benefit of an issuer for which the analyst’s employer is providing lucrative services. See, e.g., In re Credit Suisse First Boston Corp. Sec. Litig., 1998 WL 734365 at *5, 1998 U.S. Dist. LEXIS 16560 at *14 (S.D.N.Y.1998). Moreover, as in every field where interpretation of technical information is involved, there are research analysts who, by their reputation for accuracy, expertise, and insight, become particularly well-known and respected. The possibility therefore exists that some research analysts may have the ability to influence market prices on the basis of their recommendations. Indeed, in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), the Supreme Court took note that even a newspaper columnist’s views of a given stock could be a material factor affecting the stock’s price where, “[b]ecause of the ... column’s perceived quality and integrity, it had the potential of affecting the price of the stocks which it examined.” Id. at 22,108 S.Ct. 316.

In Carpenter, however, the Court further noted that the district court had found that the column’s impact on the market was “difficult ... to quantify in any particular ease.” Id. at 23, 108 S.Ct. 316, quoting United States v. Winans, 612 F.Supp. 827, 830 (S.D.N.Y.1985). As it happens, this inability to quantify was irrelevant to the decision in Carpenter, both because Carpenter was a criminal case in which proof of reliance was unnecessary1 and because, since the column was found to reflect the columnist’s honest opinions, id. at 22-23, 108 S.Ct. 316, the ease was analyzed in terms of misappropriation of information from the columnist’s employer rather than in terms of fraud on a purchaser or seller of securities, id. at 22-25, 108 S.Ct. 316.

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Bluebook (online)
222 F.R.D. 243, 2004 WL 1506242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarco-v-lehman-bros-nysd-2004.