Grossman v. Waste Management, Inc.

100 F.R.D. 781, 38 Fed. R. Serv. 2d 1550, 1984 U.S. Dist. LEXIS 19736
CourtDistrict Court, N.D. Illinois
DecidedFebruary 6, 1984
DocketNo. 83 C 2167
StatusPublished
Cited by54 cases

This text of 100 F.R.D. 781 (Grossman v. Waste Management, Inc.) 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
Grossman v. Waste Management, Inc., 100 F.R.D. 781, 38 Fed. R. Serv. 2d 1550, 1984 U.S. Dist. LEXIS 19736 (N.D. Ill. 1984).

Opinion

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

Plaintiffs have moved under Fed.R.Civ.P. 23(b)(3) to certify two classes in this securities fraud action. Plaintiffs acquired stock of defendant Waste Management, Inc. (“Waste Management”) either by purchase or, in the case of plaintiff Cathy Chester, by an exchange of shares of Chem-Nuclear, Inc. for Waste Management shares in the October 28, 1982 merger of the two companies. Waste Management is a corporation whose activities include the disposal and transportation of chemical wastes.

The complaint alleges that defendants omitted from various corporate reports and releases information concerning problems and potential problems with environmental regulatory authorities, and that those reports and releases painted an unduly optimistic picture of Waste Management’s economic outlook and mischaracterized the extent of its compliance with the environmental laws. This series of omissions and/or misrepresentations allegedly began with the issuance of Waste Management’s 1981 Annual Report on March 31, 1982. The challenged course of conduct included an allegedly misleading prospectus issued in connection with the proposed Waste Management — Chem Nuclear merger. The effect of Waste Management’s concealment of its problems and potential problems, plaintiffs allege, was to inflate the market price of its stock. Thus plaintiffs acquired the stock at a price higher than it would have been had Waste Management made full disclosure. This house of cards came crashing down on March 21, 1983, when, plaintiffs allege, it was publicly revealed for the first time that Waste Management had been charged with violating environmental regulations by authorities in several states and by the federal government. This resulted in a drastic drop in the price of Waste Management’s stock.

The proposed classes relate to plaintiffs’ claims under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976), and § 11 of the Securities Act of 1933, 15 U.S.C. § 77k (1976).1 For their § 10(b) class, plaintiffs propose the following definition:

All persons, other than the defendants and their immediate families, subsidiaries [784]*784and affiliates, who purchased the common stock of Waste Management (including receiving such stock by exchange of other securities for such stock) during the period from March 31, 1982 through March 18, 1983 inclusive and who sustained damages as a result thereof.

For their § 11 class, plaintiffs propose the following:

All persons, other than the defendants and their immediate families, subsidiaries or affiliates, who were shareholders of Chem-Nuclear Systems, Inc. and who acquired Waste Management common stock pursuant to the October 28, 1982 merger of Chem-Nuclear into a subsidiary of Waste Management, and who sustained damages as a result thereof.

All three plaintiffs are proposed as representatives for the § 10(b) class; plaintiff Chester is the proposed § 11 class representative.

To determine whether the classes should be certified, we must examine whether the members of the classes are so numerous that joinder of all members is impracticable; whether there are questions common to the class and whether those common questions predominate over questions affecting only individual members; whether the claims of the proposed representatives are typical of those of the class; whether the representatives will fairly and adequately protect the interests of the class; and whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Fed.R.Civ.P. 23(a), (b)(3). We begin with the proposed § 10(b) class.

SECTION 10(B) CLASS

A threshold issue raised by defendants with respect to the § 10(b) class is the sufficiency of the class definition. Defendants argue that the proposed class definition is vague due to the requirement that a class member have “sustained damage.” Defendants assert that in light of this language class membership cannot be determined without adjudication of the merits and that certification is therefore improper. See, e.g., Simpson v. Miller, 93 F.R.D. 540, 545 & n. 11 (N.D.Ill.1982); Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974). Plaintiffs point out, however, that classes including all purchasers of given securities or all purchasers who sustained damages are fairly typical in securities fraud litigation. See, e.g., Sirota v. Solitron Devices, Inc., 673 F.2d 566 (2d Cir.1982); Levit v. Katchmark, No. 82-3955 (W.D.Pa. May 13, 1983); Issen v. GSC Enterprises, Inc., 522 F.Supp. 390, 404 (N.D.Ill.1981).

Plaintiffs state that the “sustained damage” language is superfluous and can be deleted. Defendants respond that this would impermissibly broaden the class to include at least some purchasers who do not have claims for damages. Defendants’ position with respect to the class definition amounts to “heads we win, tails you lose.” If their arguments were generally accepted it is unlikely that a class could be certified in any securities fraud action involving fraud resulting in an inflation of the market price of stock. This would conflict with the purpose of the securities laws in “promot[ing] free and honest securities markets,” Shores v. Sklar, 647 F.2d 462, 470 (5th Cir.1981) (en banc), cert. denied, - U.S. -, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983), and with the strong policy favoring class actions in securities fraud actions. See King v. Kansas City Southern Industries, Inc., 519 F.2d 20, 26 (7th Cir.1975). Whether and to what extent the class members sustained damages is not an issue at the class certification stage. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Moreover, where a class is identifiable by reference to the objective conduct of the parties, certification is proper. Simpson v. Miller, 93 F.R.D. at 546 n. 11. Though we need not delve into plaintiffs’ damage theory at this stage, it is at least possible that plaintiffs will seek to show that the price of Waste Management stock was inflated due to defendants’ conduct and that the damages of an individual plaintiff are determined by determining the “true” price at the time of [785]*785purchase and comparing it with the inflated price. Thus, if an individual bought at 30 but the “true” price would have been 20, and then sold the stock at 10, her damages amount to 10 per share. While it is conceivable that persons who both bought and sold at an inflated price are not properly class members, that too will be determinable by reference to the parties’ objective conduct, i.e., the dates of purchase and sale.

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Bluebook (online)
100 F.R.D. 781, 38 Fed. R. Serv. 2d 1550, 1984 U.S. Dist. LEXIS 19736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossman-v-waste-management-inc-ilnd-1984.