Greenfield v. U.S. Healthcare, Inc.

146 F.R.D. 118, 25 Fed. R. Serv. 3d 870, 1993 U.S. Dist. LEXIS 1011
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 4, 1993
DocketCiv. A. Nos. 92-6345, 92-6381 and 92-6412
StatusPublished
Cited by10 cases

This text of 146 F.R.D. 118 (Greenfield v. U.S. Healthcare, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenfield v. U.S. Healthcare, Inc., 146 F.R.D. 118, 25 Fed. R. Serv. 3d 870, 1993 U.S. Dist. LEXIS 1011 (E.D. Pa. 1993).

Opinion

MEMORANDUM AND ORDER

BECHTLE, Chief Judge.

Presently before the court are the motions of defendants U.S. Healthcare, Inc. and Leonard Abramson (collectively “U.S. Healthcare”), for sanctions against plaintiffs’ attorneys James R. Malone, Jr., Arnold Levin, and Harris J. Sklar, pursuant to Federal Rule of Civil Procedure 11. For the reasons set forth below, U.S. Healthcare’s motion will be granted and sanctions will be imposed in the manner set forth in the attached Order.

The court finds, in addition, that the conduct of plaintiffs’ attorneys may constitute a violation of the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania. Accordingly, pursuant to [120]*120Local Rule 14, this matter will be referred to the Disciplinary Board of the Supreme Court of Pennsylvania for review, and, if necessary, for appropriate disciplinary proceedings.

I. BACKGROUND

A. Conduct of Plaintiffs’Attorneys

On November 4, 1992, the Wall Street Journal published an article entitled “U.S. Healthcare Insiders Sold Stock Before Last Week’s 17% Price Decline.” The article stated:

U.S. Healthcare, Inc. insiders were heavy sellers of the stock before its 17% two-day drop last week on disappointing third quarter earnings____ [I]nsiders, including Leonard Abramson, the company’s chairman and president, had been selling shares as the stock climbed. During the third quarter, 16 U.S. Healthcare insiders sold a total of 742,858 shares for a total of more than $28.8 million, filings with the Securities and Exchange Commission show.

On the morning of November 4, 1992, James R. Malone, Jr., Esquire (“Malone”), a partner at Greenfield & Chimicles, read the Wall Street Journal article and suspected a violation of federal securities laws. Believing that the information set forth in the Wall Street Journal article “merit[ed] further investigation,” Malone reviewed a variety of information, including: (1) a “representative sampling” of media stories relating to U.S. Healthcare; (2) a disclosure report containing a variety of background and financial information regarding U.S. Healthcare; (3) abstracts of the U.S. Healthcare SEC filings referred to in the Wall Street Journal article; and (4) a number of “on line” analyst reports and newspaper articles reflecting “buy” recommendations for U.S. Healthcare’s stock. (Malone Aff. ¶¶ 5-8.) After reviewing this information, Malone concluded that he had reasonable grounds to file a class action against U.S. Healthcare for alleged violations of federal securities laws. (Malone Aff. H 9.)

Having a case but no client, Malone telephoned Robert K. Greenfield (“Greenfield”) in' Florida.1 Malone informed Greenfield that he had read a story about insider trading at U.S. Healthcare in the Wall Street Journal, he asked Greenfield if owned stock in U.S. Healthcare, and he asked Greenfield if he would like Greenfield & Chimicles to file suit on his behalf if the firm concluded that there had been any actionable wrongdoing.2 (R. at 20.)3 Greenfield answered that he did own stock in U.S. Healthcare, he told Malone how many shares he owned and when he bought it, and he consented, on the telephone, to the filing of a lawsuit where Greenfield would be named as the plaintiff. (R. at 20.) During this brief conversation, Malone never explained to Greenfield the specifics of his proposed lawsuit against U.S. Healthcare, nor did he inquire as to whether Greenfield would have any potential conflicts of interest.

Later that same day, Malone filed a 12-page complaint against U.S. Healthcare, Inc. and Leonard Abramson (Civil Action No. 92-6345) (“Greenfield Complaint”), alleging violations of the federal securities laws, specifically, §§ 10(b) and 20 of the Exchange Act and Rule 10b-5 promulgated thereunder. Malone also alleged that “Plaintiff [Greenfield] will fairly and adequately protect the interests of the Class.” (Greenfield Complaint II13.) After filing the complaint, Malone sent a copy to Greenfield, along with a retainer agreement, which was to be signed and dated by Greenfield and then returned.4

[121]*121Also on November 4, 1992, Fred Taylor Isquith, Esquire (“Isquith”), a partner at Wolf Haldenstein Adler Freeman & Herz in New York, allegedly received a telephone call from Allen Strunk’s (“Strunk”) personal attorney in Florida expressing concern over the drop in price of his client’s U.S. Healthcare stock.5 According to Isquith, Strunk’s attorney stated that his client believed there had been incomplete information about U.S. Healthcare available to investors when he made his investment, and Strunk’s Florida attorney allegedly asked Isquith to investigate. (Isquith Aff. II3.) After “due deliberation and considerable research,” allegedly of the same SEC documents and analyst reports reviewed by Malone, Isquith concluded that a class action was warranted against U.S. Healthcare for violations of federal securities laws. (Isquith Aff. MI 3-5.) After determining that Pennsylvania was the proper forum in which to file suit, Isquith allegedly telephoned Greenfield & Chimicles to discuss the case and inquire as to whether Greenfield & Chimicles would act as local and co-counsel for Strunk. (Isquith Aff. MI 8-10.) After some discussion, Greenfield & Chimicles agreed to represent Strunk. (Isquith Aff. If 10.)

On November 5, 1992, Greenfield & Chimicles filed a complaint against U.S. Healthcare on behalf of Strunk (Civil Action No. 92-6381) (“Strunk Complaint”). Except for the plaintiff’s name, the Strunk Complaint is a verbatim version of the Greenfield Complaint. Both the Greenfield and Strunk Complaints were signed by Malone.

The next day, November 6, 1992, Arnold Levin, Esquire (“Levin”), of Levin Fishbein Sedran & Berman, and Harris J. Sklar, Esquire (“Sklar”), filed suit against U.S. Healthcare on behalf of Scott and Patricia Garr (Civil Action No. 92-6412) (“Garr Complaint”). Once again, except for some typographical errors and the plaintiff’s name, the Garr Complaint is a verbatim version of the Greenfield and Strunk Complaints.6

B. U.S. Healthcare’s Motion for Rule 11 Sanctions

On November 6, 1992, U.S. Healthcare filed the instant motion for Rule 11 sanctions. In support of its motion for sanctions, U.S. Healthcare argues that plaintiffs’ attorneys violated both Fed.R.Civ.P. 11 and Rule 1.4 of the Rules of Professional Conduct because they failed to conduct a reasonable inquiry to ensure that their pleadings were “well grounded in fact” before signing each complaint. (Motion Brief at 2, 7-12.) More specifically, U.S. Healthcare argues that if plaintiffs’ counsel had conducted a reasonable inquiry, they would have discovered the falsity of their allegations. (Motion Brief at 7-12.) According to U.S. Healthcare, the reasonably ascertainable facts are that, prior to the issuance of the company’s third quarter report, numerous analysts had predicted a rise in U.S. Healthcare’s medical loss ratio, which represents the difference between what U.S.

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Bluebook (online)
146 F.R.D. 118, 25 Fed. R. Serv. 3d 870, 1993 U.S. Dist. LEXIS 1011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenfield-v-us-healthcare-inc-paed-1993.