Harman v. Lyphomed, Inc.

122 F.R.D. 522, 1988 U.S. Dist. LEXIS 11579, 1988 WL 112615
CourtDistrict Court, N.D. Illinois
DecidedOctober 12, 1988
DocketNo. 88 C 0476
StatusPublished
Cited by29 cases

This text of 122 F.R.D. 522 (Harman v. Lyphomed, 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
Harman v. Lyphomed, Inc., 122 F.R.D. 522, 1988 U.S. Dist. LEXIS 11579, 1988 WL 112615 (N.D. Ill. 1988).

Opinion

MEMORANDUM OPINION AND ORDER

HART, District Judge.

This securities fraud case is here on plaintiffs’ motion for class certification. [524]*524Defendant LyphoMed, Inc. (“LyphoMed”) produces and supplies drugs to hospitals and clinics. Plaintiffs purchased LyphoMed stock during the proposed class period, March 31, 1987 through March 31, 1988 (the “class period”).

The essence of plaintiffs’ claim is that defendants, in a series of written financial reports and press releases, materially misrepresented LyphoMed’s financial condition. LyphoMed allegedly concealed from investors the damaging results of investigations conducted by the Food and Drug Administration (“FDA”). By withholding this information, defendants defrauded the market into overestimating the value of LyphoMed stock. Plaintiffs relied on the market price as an accurate reflection of LyphoMed’s financial condition. In March, 1988, when LyphoMed finally disclosed the true extent of its regulatory infractions, the value of its stock declined sharply. Plaintiffs claim to have suffered damages as a result of defendants’ year-long scheme.

Plaintiffs move to certify the class of all persons who purchased LyphoMed common stock during the proposed class period and who suffered damages as a result. The defendants, immediate family of the individual defendants, and entities in which the defendants have a controlling interest, are excluded from the class.

For the reasons described below, plaintiffs’ motion is granted. The class period is amended to begin July 21, 1987.

DISCUSSION

In ruling on a motion for class certification, “the allegation's are taken as true and the merits of the complaint are not examined.” Allen v. Isaac, 99 F.R.D. 45, 49 (N.D.Ill.1983). Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs must meet the requirements of Rule 23(a), which provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

In addition, plaintiffs must meet one of the requirements of Rule 23(b). In this case, plaintiffs contend the claim satisfies 23(b)(3); viz. common questions of law or fact predominate over questions affecting only individual class members, and a class action is superior to other methods of handling the litigation.

A. Numerosity: 23(a)(1)

Rule 23(a)(1) requires that the class be so numerous that joinder is impracticable. The exact number of class members is not presently known, nor need it be. Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). Plaintiffs claim, and defendants agree, that the average weekly trading volume during the class period exceeded one million shares. In such a case, the court can reasonably assume that joinder of all potential plaintiffs is impracticable. Id.

B. Commonality and Predominance: 23(a)(2) and 23(b)(3)

Rule 23(a)(2) asks whether the claims involve common questions of law or fact; the related inquiry in Rule 23(b)(3) is whether these common questions predominate over individual ones. For convenience, the two are discussed together.

According to plaintiffs, the essential scenario, common to all claims, is that defendants materially misrepresented LyphoMed’s financial condition. This misrepresentation duped the market into overestimating LyphoMed’s value. Plaintiffs, erroneously believing the market price of LyphoMed accurately reflected its value, purchased stock for more than it was worth. When the misrepresentations became known, the market price fell, and plaintiffs suffered injury as a result.

Under this scheme, at least three critical questions are common to all claims: did [525]*525defendants materially misrepresent the company’s financial condition, did they act with the necessary scienter, and did the market price for LyphoMed stock reflect these misrepresentations. See Basic, Inc. v. Levinson, — U.S. -, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988); Grossman v. Waste Management, Inc., 100 F.R.D. at 785-86. Though defendants insist that plaintiffs have not shown the existence of common questions, their insistence is unsupported. Accordingly, the requirements of 23(a)(2) have been met.

Turning to the predominance requirements of 23(b)(3), defendants claim that individual questions of reliance, materiality, scienter, and damages overwhelm any common issues. They are mistaken.

1. Reliance

Reliance is an essential element of a rule 10(b)-5 action. Basic, Inc. v. Levinson, 108 S.Ct. at 989 (1988); Ray v. Karris, 780 F.2d 636, 640 n. 2 (7th Cir.1985). Ordinarily, each plaintiff must demonstrate that he relied on defendant’s misrepresentations. There is an exception to this principal, however. When the plaintiff properly alleges a fraud on the market, as plaintiffs do here, the court may presume reliance. The Supreme Court recently explained the theory:

The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____

Basic, Inc. v. Levinson, 108 S.Ct. at 988-99 (1988), quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986) (“By artificially inflating the price of the stock, the misrepresentations defraud purchasers who rely on the price as an indication of the stock’s value” [emphasis added.]) In other words, investors rely on the price, and the price reflects the misrepresentations. By relying on the price, investors indirectly rely on the misrepresentations. Reliance on particular misstatements, then, need not be proven in the individual case. Basic, 108 S.Ct. at 990-91.

Defendants try to distinguish Basic. They note that LyphoMed stock is traded over the counter, and that the fraud on the market theory does not apply to such securities. But nothing in the theory limits its application to stocks which trade on a particular exchange. Rather, the question is always whether the stock trades in an efficient market, i.e. one in which material information on the company is widely available and accurately reflected in the value of the stock. Basic, 108 S.Ct. at 991 and n.

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Bluebook (online)
122 F.R.D. 522, 1988 U.S. Dist. LEXIS 11579, 1988 WL 112615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harman-v-lyphomed-inc-ilnd-1988.