Duban v. Diversified Mortgage Investors

87 F.R.D. 33, 1980 U.S. Dist. LEXIS 10943
CourtDistrict Court, S.D. New York
DecidedApril 3, 1980
DocketNos. 74 Civ. 3035(LPG), 77 Civ. 368(LPG), 75 Civ. 1745(LPG), and 75 Civ. 1806(LPG)
StatusPublished
Cited by15 cases

This text of 87 F.R.D. 33 (Duban v. Diversified Mortgage Investors) 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
Duban v. Diversified Mortgage Investors, 87 F.R.D. 33, 1980 U.S. Dist. LEXIS 10943 (S.D.N.Y. 1980).

Opinion

GAGLIARDI, District Judge.

Preliminary Statement

Plaintiffs, purchasers of stock of Diversified Mortgage Investors (“DMI”) commenced these actions alleging violations of Section 10(b) of the Securities and Ex[36]*36change Act of 1934 and Rule 10(b)5 promulgated thereunder. Defendant DMI is a real estate investment trust; other defendants are Diversified Advisers, Inc., the investment advisor of DMI; Continental Investment Corp., a financial holding company and the parent of DMI and Diversified Ad-visors, Inc.; various individual directors, trustees and officers of these corporate defendants; Price Waterhouse and Co., a certified public accounting firm which was the independent auditor of DMI at the time of the alleged violations, and Hornblower & Weeks-Hemphill, Noyes, Inc. (“Hornblower”), a registered broker-dealer.

Plaintiffs, purporting to represent classes of purchasers of DMI stock, allege that defendant were responsible for the preparation and distribution of reports, statements, and various other public documents which omitted material facts and included material misstatements. As a result of these activities, plaintiffs claim that they were induced to purchase the stock at inflated prices and suffered losses when the price of the stock declined. The above-captioned cases were consolidated for pre-trial purposes and after the filing of voluminous motions, resulting in three decisions by this court, extensive discovery and intensive negotiations, the parties have now entered into a single stipulation of settlement, filed with the court on June 19, 1979 covering all four actions. This court’s order of June 20, 1979 conditionally certified the actions, solely for purposes of settlement, as a single class action comprised of all purchasers of DMI stock who purchased such stock between January 1, 1971 and March 31, 1975. The order further provided that notice would be sent to all potential members of the settlement class advising of the penden-cy of the action, the proposed terms of settlement, and procedures for filing claims, objecting to the settlement, or requesting exclusion from the class. The notice would advise of a hearing scheduled for October 17, 1979, at which objectors would be given an opportunity to speak in opposition to the settlement. Two class members filed objections, and as a result of further negotiations, the proposal of one objector for an amendment to a term of settlement was incorporated into the settlement agreement, requiring supplementary notice and a second hearing which was held on December 4, 1979. The court now certifies the class for the purpose of settlement, and having considered the terms of the proposed settlement, as well as opposition filed on behalf of the remaining single objector, approves the amended settlement as fair, adequate and reasonable. The court also approves the payment of $152,101.39 as attorneys’ fees and disbursements, to be distributed in accordance with the schedule set forth below.

The Litigation

The actions will be described briefly for the purpose of providing relevant background to the discussion of the settlement which follows. Each of the original complaints alleged that' the defendants were responsible for the preparation and dissemination of various corporate reporting forms, documents, and press releases which contained false, inaccurate and misleading information about the financial condition of DMI particularly with respect to the adequacy of loan reserves, loan delinquency rates, estimates of predicted earnings and the nature and safety of loans. The Duban action was originally brought on behalf of the plaintiff individually and was later amended to seek establishment of the case as a class action; the remaining cases sought class certification immediately. In response to each complaint the defendants moved for dismissal, contending, inter alia, that plaintiffs had failed to state a claim with particularity as required by Rule 9(b) Fed.R.Civ.P. By its decision dated February 25, 1977, this court granted defendants’ motions with leave to plaintiffs to replead. Defendants responded to the subsequent amended complaints by motions to dismiss. On September 13, 1977 this court once again granted in part and denied in part defendants’ motions, with leave to plaintiffs to replead. The defendants have moved to dismiss what are now the third amended complaint in Duban and the second amend[37]*37ed complaints in the remaining actions. Settlement negotiations began before another decision on defendants’ motions was rendered.

Several significant factors, according to plaintiffs’ counsel, influenced their decision to advise their clients to enter into settlement negotiations. As the brief summary of this litigation illustrates, the plaintiffs encountered difficulties in their attempts to allege with the requisite particularity the specific wrongful acts engaged in by defendants. Although plaintiffs were confident that the amended complaints now before the court would satisfy the requirements of Rule 9, the defendants nonetheless had again attacked the amended complaints with dismissal motions. Furthermore, prior decisions in this case indicated to plaintiffs that they would have a significant burden in pleading and proving the material facts, as well as defendants’ knowledge of these facts. Plaintiffs also considered defendants’ contentions that the plaintiffs’ losses were attributable to a decline in the market, rather than due to defendants’ misstatements or omissions. Plaintiffs concluded that the trial of the issues raised in the complaint would involve difficult and close questions of law and fact, and that their ability to prove their cases was uncertain. They determined, therefore, that it was in the best interests of the classes which they represent to secure the benefits of the proposed settlement, rather than to hazard the uncertainties of continued litigation. In light of the foregoing, plaintiffs’ counsel entered into the stipulation of settlement submitted to this court for approval on June 19, 1979 which was later amended by agreement of the parties.

The Proposed Settlement

The stipulation provides for a fund of $550,000 of which $500,000 will be contributed by DMI and $50,000 by Hornblower. DMI is responsible as well for all expenses of administration of the settlement, now estimated to be $200,000. DMI is entitled to deduct a sum not to exceed $25,000 from the settlement fund as reimbursement for administrative expenses. The stipulation further provides that plaintiffs’ counsel may apply to the court for an award to cover fees and disbursements in an amount to be determined by the court, and to be deducted from the settlement fund. The balance of the settlement fund will be available for distribution to members of the plaintiff class who have not filed notices of exclusion and who have filed timely proofs of claim for losses suffered during the relevant period. Each approved claimant is then to receive a pro rata share of the settlement fund in accordance with a prescribed formula. The terms of the stipulation submitted to this court on June 19th, provided that seventy percent (70%) of the settlement fund is allocated for pro rata distribution to approved claimants who suffered losses arising from purchasers of DMI stock between December 6, 1973 and March 31, 1975, inclusive, with the remaining thirty percent (30%) of the fund allocated for distribution to those whose losses resulted from purchases between January 1, 1971 and December 5, 1973, inclusive. The settlement agreement provides that upon approval of the settlement, a judgment will be entered which

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Bluebook (online)
87 F.R.D. 33, 1980 U.S. Dist. LEXIS 10943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duban-v-diversified-mortgage-investors-nysd-1980.