Facciola v. Greenberg Traurig LLP

281 F.R.D. 363, 2012 WL 1021071, 2012 U.S. Dist. LEXIS 37133
CourtDistrict Court, D. Arizona
DecidedMarch 20, 2012
DocketNo. CV-10-1025-PHX-FJM
StatusPublished
Cited by3 cases

This text of 281 F.R.D. 363 (Facciola v. Greenberg Traurig LLP) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Facciola v. Greenberg Traurig LLP, 281 F.R.D. 363, 2012 WL 1021071, 2012 U.S. Dist. LEXIS 37133 (D. Ariz. 2012).

Opinion

ORDER

FREDERICK J. MARTONE, District Judge.

I.

Plaintiffs filed this putative class action on behalf of individuals who purchased investment products offered by Mortgages, Ltd. (“ML”), a private mortgage lender in the business of making high-interest bridge loans to real estate developers (“ML Plaintiffs”), and Radical Bunny, LLC (“RB”), who sold pass-through interests in the loans made by ML (“RB Plaintiffs”). The proposed class period for both classes is May 16, 2006 through June 3, 2008.

Lead plaintiffs contend that defendants Greenberg Traurig, LLP (“Greenberg”), legal counsel for ML, and Quarles & Brady, LLP (“Quarles”), legal counsel for RB, participated in a fraudulent scheme, whereby RB raised millions of dollars through illegal securities sales in pass-through interests in loans originated by ML in order to fund ML’s ongoing operations and hide ML’s insolvency. Although RB represented that it sold mortgage-backed securities, the investments were in fact unsecured, the securities were not registered, and the RB principals were not licensed to sell securities — all in violation of Arizona securities law. During the period from September 1, 2005 through June 3, 2008, ML and RB together raised over $900 million from more than 2,000 investors nationwide. Plaintiffs allege that ML eventually adopted a “Ponzi” scheme allowing it to hide its insolvency and remain in business by finding new investors through RB to pay its existing debt. Precipitated by the collapse of the real estate market and ML’s inability to continue funding loans, ML experienced financial collapse in 2008. ML CEO Scott Coles committed suicide in June 2008, and ML filed bankruptcy two weeks later. Four months later, RB also filed bankruptcy.

Plaintiffs originally filed this action against the former managers of the two companies, as well as Greenberg, Quarles, and ML’s outside auditors (“Accountant Defendants”). Early in the litigation plaintiffs voluntarily dismissed the claims against the ML and RB managers with prejudice (docs. 180,183), and in an order dated June 9, 2011, we granted the Accountant Defendants’ motion to dismiss (doc. 200).

Lead plaintiffs argue that they and members of the proposed classes were defrauded in the Ponzi scheme and that the actions of Greenberg and Quarles helped create a facade of legitimacy, enabling the Ponzi scheme and the ongoing illegal securities sales to continue. Robert Facciola and Honeylou Reznik, on behalf of investors in ML securities, and Fred Hagel and Judith Baker, on behalf of investors in RB securities, seek to certify two classes under A.R.S. § 44-2001(A) for violations of § 44-1991(A)(l) and [367]*367(3), which makes it unlawful for a person, in connection with the sale or purchase of securities, to do any of the following:

(1) Employ any device, scheme or artifice to defraud.
(3) Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit.

Based on our prior orders dismissing various claims, what remains in this motion for class certification are the ML Plaintiffs’ claims under § 44-1991(A)(l) and (3) against Green-berg, and the RB Plaintiffs’ claims under the same provisions against Quarles. Plaintiffs argue that the elasswide fraudulent scheme unites all investors by creating a common injury and common statutory violation, thereby supplying the common basis for class certification under Rule 23, Fed.R.Civ.P.

We now have before us plaintiffs’ motion for class certification (doc. 256), Quarles’ response (doc. 261), Greenberg’s response (doc. 264), the Accountant Defendants’ response (doe. 263)1, and plaintiffs’ replies (doc. 268, 269, 270).

II.

A. Standing

Greenberg first argues that the named plaintiffs lack standing to pursue claims made pursuant to securities offerings in which they did not invest. They argue that the proposed class of ML investors purchased over 130 different securities pursuant to varying offering and investment documents, but the named plaintiffs invested in only a handful of the total securities. Therefore, Greenberg argues that the named plaintiffs lack standing to pursue claims based on the other securities and offerings.

Plaintiffs counter that all of the proposed class members were defrauded in the same Ponzi scheme sponsored by the same two companies. They contend that the fraud on which this case turns, and which unites all proposed class members, is the Ponzi scheme. Therefore, plaintiffs argue that all class members have standing because they suffered a common injury from, and share a common statutory remedy for, the Ponzi scheme.

“[Sjtanding is gauged by the specific common-law, statutory or constitutional claims that a party presents.” Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77, 111 S.Ct. 1700, 1704, 114 L.Ed.2d 134 (1991). “[Pjlaintiffs with a valid securities claim may represent the interests of purchasers of other types of securities in a class action where the alleged harm stems from the same allegedly improper conduct.” In re Juniper Networks, Inc. Sec. Litigation, 264 F.R.D. 584, 594 (N.D.Cal. 2009); see also In re Sepracor Inc., 233 F.R.D. 52, 56 (D.Mass.2005) (appointing purchaser of options as lead plaintiff for class that included purchasers of all of defendant company’s equity securities). “[Courts] often appoint purchasers of one type of securities to represent purchasers of other types of securities of the same issuer where the interests of those purchasers are aligned.” In re Juniper Networks, 264 F.R.D. at 594.

Here, plaintiffs challenge defendants’ conduct — participation in a Ponzi scheme — as a violation of A.R.S. § 44-1991(A)(l) and (3). Plaintiffs’ injury — lost investment — can be fairly traced to the challenged actions of defendants and their alleged participation in the fraudulent scheme perpetrated by the principals of ML and RB. If plaintiffs prevail on their claim, the injury is likely to be redressed through rescission under A.R.S. § 44-2001(A). Because lead plaintiffs, as well as their proposed class members, suffered the same injury from the same fraudulent scheme, and share a common statutory remedy, we conclude that the lead plaintiffs have standing to assert claims on behalf of the proposed classes regardless of the specific type of security offering they purchased.

B. Securities Litigation Uniform Standards Act

Greenberg also argues that this action is barred by the Securities Litigation Uniform [368]*368Standards Act (“SLUSA”), 15 U.S.C. § 77p(b), and should be dismissed. Congress enacted the Private Securities Litigation Reform Act (“PSLRA”), Pub.L. 104-67, 109 Stat. 737 (1995), to combat “perceived abuses of the class-action vehicle in litigation involving nationally traded securities.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Debit,

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Cite This Page — Counsel Stack

Bluebook (online)
281 F.R.D. 363, 2012 WL 1021071, 2012 U.S. Dist. LEXIS 37133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/facciola-v-greenberg-traurig-llp-azd-2012.