Fry v. UAL Corp.

136 F.R.D. 626, 1991 U.S. Dist. LEXIS 5890, 1991 WL 81912
CourtDistrict Court, N.D. Illinois
DecidedMay 1, 1991
DocketNo. 90 C0999
StatusPublished
Cited by34 cases

This text of 136 F.R.D. 626 (Fry v. UAL Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fry v. UAL Corp., 136 F.R.D. 626, 1991 U.S. Dist. LEXIS 5890, 1991 WL 81912 (N.D. Ill. 1991).

Opinion

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

Plaintiffs brought this action on behalf of themselves and others who sold Allegis Corporation common stock or puts in Alleg-is Corporation common stock between October 29, 1987 and December 8, 1987 (the “class period”).1 Plaintiffs seek damages under § 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, and under state law, for losses sustained from these sales, which were allegedly induced by certain false and misleading statements and omissions by UAL Corporation. Jurisdiction over the federal claims is asserted under § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, and over the state claims pursuant to principles of pendant jurisdiction.

This matter is presently before the court on plaintiffs motion for class certification pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure. UAL opposes class certification on the grounds that the named plaintiffs do not adequately represent the class, the individual claims of the named plaintiffs will predominate over those of the class, and the claims of the class members will be in conflict. For the reasons set forth below, the court finds UAL’s objections to be without merit. Accordingly, the court will certify a class of sellers of Allegis Corporation common stock and puts in Allegis Corporation common stock, as described in the complaint, reserving the right to alter, amend or modify the class pursuant to Rule 23(c).

STATEMENT OF FACTS

On May 26, 1987, a group led by Coni-sten Partners, a firm specializing in leveraged buy-outs, takeovers and proxy solicitations, purchased approximately 13% of the common stock in Allegis Corporation. Subsequently, as the largest shareholder, Conisten began to exert pressure on Alleg-is to divest itself of its non-core businesses —namely, its car rental and hotel business[629]*629es—and to distribute the proceeds to shareholders.

On June 9, 1987, Richard J. Ferris, the chairman of the board and chief executive officer of Allegis who had engineered the acquisition of the non-core businesses, resigned. That same day, the board retained The First Boston Corporation to devise a plan for the sale of the non-core businesses. On June 15, 1987, the board announced that it had approved a plan to sell the non-core businesses and distribute the proceeds to shareholders. On October 29, 1987, Allegis announced that the proceeds of its divestiture program would be distributed through a special dividend. That this would be the mechanism for distribution was reiterated by Allegis and reported by the financial press on several occasions between October 29, 1987 and December 8, 1987.

Plaintiffs contend, however, that beginning in the summer of 1987 and continuing through the spring of 1988, Coniston was negotiating with Allegis to distribute the proceeds of the divestiture program through a buy-back of shares, rather than through a special dividend. While allegedly contemplating the buy-back program at Coniston’s behest, Allegis continued to publicly assert its intention to issue a special dividend, without mentioning its ongoing negotiations with Coniston.

In early December, 1987, prices for puts in Allegis common stock began to rise. On December 3, 1987, plaintiff Fry, acting for himself and other named plaintiffs, called the Department of Investor Relations of Allegis Corporation to confirm the.company’s intention to distribute the proceeds from the sale of the non-core businesses through a special dividend and to investigate the reason for the sudden increase in the stock’s price. Fry was told that the special dividend was still the intended means of distribution. No mention was made of the negotiations with Coniston.

On December 7, 1987, in a telephone conversation between Dwyer and Fry, the two investors attempted to determine why put prices were rising when share prices were firm or rising. Because put values and share prices rarely track each other, they assumed that certain information had not been publicly disclosed. Dwyer suggested that they bring a tax accountant into their conversation to help them theorize about this unusual behavior. The accountant advised them that if the distribution did not take place through a dividend, a tender offer could be used. The accountant further explained that a tender offer presented tax benefits to shareholders, because only the difference between the offer price and the basis would be taxable. A dividend, on the other hand, would be wholly taxable to most shareholders.

On December 8, 1987, an article in the Wall Street Journal announced that sources close to the defendant had revealed that Coniston was pushing for the divestiture proceeds to take the form of a partial stock buy-out rather than a special dividend. The next day, December 9, 1987, the defendant’s board of directors announced that “as a result of recent changes in stock market conditions and in consultation with its financial advisor, The First Boston Corp., it is considering a tender offer for a substantial number of shares of its common stock as an alternative to the previously announced intention to declare a dividend as the method of distribution to its stockholders of the net proceeds from the sales ...” These rumors that Allegis was considering a buy-back boosted the price of its stock and also the price of puts in its stock.

Allegis formally announced its intention to distribute the proceeds from the sale of its none-core businesses through a buyback of shares, rather than through a special dividend, on January 29, 1988. An offer to purchase up to 35,500,000 shares for $80 a share was formally issued by the defendant on February 17, 1988. In its offering memorandum, Allegis stated that it had been discussing the possibility of a buy-back with Coniston since the summer of 1987.

According to the plaintiffs, share prices rose with the news of Allegis Corporation’s intended self-tender, because of the perceived tax advantages of this method of [630]*630distribution. Similarly put prices rose in anticipation of the fall in price of the outstanding shares after the buy-back. Such a price drop would benefit put holders and hurt those put sellers whose securities had a post buy-back expiration date.

Because the plaintiffs had sold their securities before Allegis publicly announced its intention to proceed with a buy-back, on December 9, they sold at prices which were artificially deflated by the prior public announcements. By assuming that the market reflected all information relevant to price, when Allegis was allegedly withholding relevant information, the plaintiffs claim that they were damaged.

ANALYSIS

Rule 23 of the Federal Rules of Civil Procedure governs class actions. To certify a proposed class, the court must find that the class and its proposed representatives have met the four prerequisites enumerated in 23(a). In addition, if those prerequisites have been met, the court must find that the procedural considerations set forth in one of the alternatives under 23(b) mandate bringing the suit as a class action.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Silversman v. Motorola, Inc.
259 F.R.D. 163 (N.D. Illinois, 2009)
Ross v. Abercrombie & Fitch Co.
257 F.R.D. 435 (S.D. Ohio, 2009)
Barden v. Hurd Millwork Co.
249 F.R.D. 316 (E.D. Wisconsin, 2008)
Kohen v. Pacific Investment Management Co. LLC
244 F.R.D. 469 (N.D. Illinois, 2007)
Smith v. AON Corp.
238 F.R.D. 609 (N.D. Illinois, 2006)
Roth v. AON Corp.
238 F.R.D. 603 (N.D. Illinois, 2006)
In re Retek Inc. Securities Litigation
236 F.R.D. 431 (D. Minnesota, 2006)
In re Neopharm, Inc. Securities Litigation
225 F.R.D. 563 (N.D. Illinois, 2004)
Bunting v. Progressive Corp.
809 N.E.2d 225 (Appellate Court of Illinois, 2004)
Oliveira v. Amoco Oil Co.
726 N.E.2d 51 (Appellate Court of Illinois, 2000)
In re Synthroid Marketing Litigation
188 F.R.D. 287 (N.D. Illinois, 1999)
MAN Roland Inc. v. Quantum Color Corp.
57 F. Supp. 2d 568 (N.D. Illinois, 1999)
Tylka v. Gerber Products Co.
182 F.R.D. 573 (N.D. Illinois, 1998)
Rohlfing v. Manor Care, Inc.
172 F.R.D. 330 (N.D. Illinois, 1997)
Perry v. Household Retail Services, Inc.
953 F. Supp. 1378 (M.D. Alabama, 1996)
Nichols Motorcycle Supply Inc. v. Dunlop Tire Corp.
913 F. Supp. 1088 (N.D. Illinois, 1995)
Fry v. UAL Corp.
895 F. Supp. 1018 (N.D. Illinois, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
136 F.R.D. 626, 1991 U.S. Dist. LEXIS 5890, 1991 WL 81912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-v-ual-corp-ilnd-1991.