Freeland v. Iridium World Communications, Ltd.

233 F.R.D. 40, 2006 U.S. Dist. LEXIS 744, 2006 WL 56536
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 9, 2006
DocketNos. CIV.A. 99-1002, CIV.A. 99-1017, CIV.A. 99-1036, CIV.A. 99-1053, CIV.A. 99-1058, CIV.A. 99-1096, CIV.A. 99-1117, CIV.A. 99-1128, 99-1159, 99-1259, 99-1333, 99-1373, 99-1374, 99-1375, 99-1411, 99-1424, 99-1492, 99-1506, 99-1561, 99-1647
StatusPublished
Cited by18 cases

This text of 233 F.R.D. 40 (Freeland v. Iridium World Communications, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freeland v. Iridium World Communications, Ltd., 233 F.R.D. 40, 2006 U.S. Dist. LEXIS 744, 2006 WL 56536 (D.C. Cir. 2006).

Opinion

ORDER

LAUGHREY, District Judge.

Pending before the Court is Plaintiffs’ Renewed Motion for Class Certification [Doc. # 120]. Plaintiffs1 seek to certify a class of all persons or entities who suffered damages following the purchase of Iridium securities, Iridium call options, and/or Iridium put options. The proposed class period is from September 8, 1998, to May 13, 1999, inclusive. Plaintiff Richard Mandelbaum (“Mandelbaum”) further seeks certification of a sub-class of all persons or entities who were damaged after purchasing Iridium Class A common stock pursuant to, or traceable to, a Registered Statement filed by Iridium on or about October 13, 1998, and amended November 13, 1998. Both the putative class and sub-class exclude the officers and directors of Iridium and Motorola, Inc., their immediate families, and their legal representatives, heirs, successors and assigns, and any entity in which any defendant has or had a controlling interest. For the reasons set forth below, class certification is granted for both classes.

I. Class Certification

Certification of a class requires the putative class representatives to prove (1) that the class is so numerous as to make joinder of all members impracticable, (2) that there are common questions of fact or law, (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) that the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). If those urging class certification meet the first four prerequisites, they must then satisfy one of the subdivisions of Fed.R.Civ.P. 23(b). The subdivision relied on by the Plaintiffs for class certification is Rule 23(b)(3), which requires that the questions of fact or law common to the whole class predominate over any questions affecting only individual members, and that the class action is a superior method for adjudicating the controversy.

[43]*43As to all Plaintiff Representatives except Mandelbaum, Defendants appear to concede the prerequisites of numerosity, commonality, typicality, and adequacy, as well as the requirements that common questions predominate and that a class action is a superior format to resolve the dispute. Nevertheless, they argue that the class period should end on March 31,1999, instead of May-13 and the sub-class should not be certified because it includes aftermarket purchasers. In addition, they object to Mandelbaum as a class or sub-class representative on the grounds that (A) his claims are not typical of either class because he cannot show loss causation and (B) he is not an adequate representative of either class because, as an “in an out” purchaser, he has a conflict of interest with the class.

A. The Class Period

Defendants argue that any fraud inflating the market price of Iridium securities was disclosed on March 29, 1999, and after that date it was unreasonable for class members to rely on prior Iridium representations when they purchased Iridium securities. Among the March 29 disclosures cited by Defendants were the resignation of Iridium’s CFO, Defendant Roy Grant; a sixty day extension by Iridium’s lenders of its deadlines to achieve minimum subscriber and revenue covenants; and a notice to Iridium’s lenders that Iridium was revising its customer and revenue estimates and intended to seek a modification of the covenants once it finished its revisions. Also on that day came several reports about Iridium’s financial condition, including a Bloomberg News article noting a 27 percent drop in Iridium stock since February 18, 1999, following growing concern about the company’s ability to meet its covenants; a Reuter’s article reporting a 73 percent drop in Iridium’s stock price since its 52-week high the previous May; and a statement by stock analyst Tim O’Neill saying that he expected a drastic reduction in subscriber and revenue targets. As evidence of the market correction precipitated by these disclosures, Defendants point out that Iridium’s stock price dropped 30 percent from March 26 to March 31; that the Plaintiffs filed this lawsuit on April 22; and that in their original complaint, the Plaintiffs ended the class period on March 29 because that was the date on which, according to an early press release by Plaintiffs’ counsel, the Company’s fraudulent practices were disclosed.

Plaintiffs argue that they pushed back the close of the class period since filing their original April 1999 complaint because they now believe that the March 29 press release-on which they based the original closing date-was itself fraudulent.2 Consequently, they claim that Iridium’s fraud was not revealed to the market until Iridium announced on May 13 that it would not be able to satisfy its covenants. Defendants argue that the March 29 press release was not misleading because it put investors on notice that Iridium had notified its bank lenders that it was revising its revenue and customer estimates and that it would seek modification of its covenants.

When precisely any alleged fraud on the market was cured remains in dispute. The price of Iridium stock did fall following the March 29 press release which announced that the company was revising its customer and revenue estimates,3 but it also fell further following the May 13 revelation that it would not satisfy its covenants.4 Indeed, the price of Iridium stock had begun to fall months earlier: as reported in the Bloomberg News article, it suffered a 27 percent drop from February 18 to March 29. Based only on the [44]*44change in stock price, the Court is not persuaded that the alleged fraud was cured by March 31 rather than May 13. There is simply not enough information before the Court at this stage in the litigation to say conclusively that Iridium’s March 29 press release cured any fraud on the market. Moreover, Courts must not venture too deeply into the merits of a case in deciding whether to certify a class. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”); Bynum v. District of Columbia, 214 F.R.D. 27, 40 (D.D.C.2003) (“[T]he Court will not make a preliminary inquiry into the merits in determining whether to certify the class.”). Thus, it would be inappropriate to limit the class period to March 31 as Defendants request.

B. Sub-Class Certification with Aftermarket Purchasers

Defendant Underwriters urge the Court to reject the proposed Sub-Class because it includes not only those who bought shares in the Secondary Offering but also those whose aftermarket purchases are traceable to the Registration Statement. They correctly point out that aftermarket purchasers have no standing under Section 12 of the Securities Act of 1933 because Section 12 is limited to direct purchasers. DeMaria v. Andersen, 318 F.3d 170, 177-78 (2nd Cir.2003); Lee v. Ernst & Young, LLP,

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Bluebook (online)
233 F.R.D. 40, 2006 U.S. Dist. LEXIS 744, 2006 WL 56536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeland-v-iridium-world-communications-ltd-cadc-2006.