Healy v. Loeb Rhoades & Co.

99 F.R.D. 540, 37 Fed. R. Serv. 2d 1078, 1983 U.S. Dist. LEXIS 16130
CourtDistrict Court, N.D. Illinois
DecidedJune 20, 1983
DocketNo. 82 C 5991
StatusPublished
Cited by6 cases

This text of 99 F.R.D. 540 (Healy v. Loeb Rhoades & Co.) 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
Healy v. Loeb Rhoades & Co., 99 F.R.D. 540, 37 Fed. R. Serv. 2d 1078, 1983 U.S. Dist. LEXIS 16130 (N.D. Ill. 1983).

Opinion

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This securities action is before the court on plaintiff Healy’s motion for class certification. The court grants Healy’s motion with some modifications and conditions. As the court informed the parties at the June 3 status hearing, this opinion is a brief outline of the court’s decision, rather than a complete record of all the court’s reasoning. Familiarity with the court’s prior class action opinion in Nos. 78 C 947 and 81 C 3699 is assumed.

RULE 23(a)

The court finds that the four requirements of Rule 23(a), Fed.R.Civ.P. are met. These requirements are the numerosity of the class, the existence of common questions of law or fact, the typicality of the representative’s claim, and his adequacy as a representative.

Numerosity

Healy has made a sufficient showing that the class he seeks to represent is so numerous that joinder of each member is impracticable. (Healy memo filed 12/20/81, pp. 8-10.)

Existence of Common Questions

There can be no serious dispute as to the existence of questions of law and fact common to the class. The class will proceed on a fraud-on-the-market theory, alleging that class members purchased Olympia stock (or Lone Star stock in anticipation of a merger with Olympia) in reliance on Olympia’s market price, but that that market price had been inflated artificially by defendants (hereafter “Loeb Rhoades”).

Typicality

Loeb Rhoades challenges the typicality of Healy’s claim on several bases. Loeb Rhoades asserts that Healy is subject to an atypical defense that he made a profit trading in Olympia during the period in question. As discussed below, the court will allow the class to present claims with respect to purchases of Lone Star made in anticipation of the Olympia merger. Healy’s Lone Star purchases therefore should be considered, defeating the argument that he profited during the period in question. (Healy memo filed 4/7/83, pp. 29-30.)

Loeb Rhoades also suggests possible defenses to Healy’s claim that he relied on the integrity of the market in making his purchases. These possible defenses probably are not significantly atypical. Any class representative in a fraud-on-the-market case would be subject to some kind of challenge that he did not rely on the integrity of the market. The court doubts that Loeb Rhoades’ proposed challenges to Healy’s reliance will distract him from his duties to the class. See J.H. Cohn & Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 998-99 (7th Cir.1980).

Adequacy of Representation

With great zeal Loeb Rhoades attacks Healy’s adequacy as a class representative. Loeb Rhoades attacks Healy’s credibility, but the court finds these attacks insufficient to disqualify Healy. Some of Loeb Rhoades’ arguments exaggerate problems in Healy’s testimony. For instance, Loeb Rhoades points to a passage in which Healy [542]*542could not remember why he purchased Lone Star (Healy dep., pp. 70-73), and a later passage in which he appears to remember his reasons after prompting from counsel (Healy dep., pp. 117-122). Before both these passages, however, Healy volunteered the statement that he purchased Lone Star to acquire Olympia stock (Healy dep., p. 41). All these passages demonstrate some confusion, including confusion as to chronology, but it cannot be said fairly that Healy could not recall his reasons for purchasing Lone Star. Loeb Rhoades’ other arguments, while not baseless, are insufficient to warrant denial of class certification.

Loeb Rhoades argues also that Healy’s lawsuit was brought solely to sustain the class action which Frank McNichols attempted to bring. In some sense this appears to be true, and the court recognizes that this factor can be considered on a motion for certification. Given all the circumstances of this case, however, the court does not believe that McNichols’ involvement in Healy’s decision to bring suit is a sufficient reason not to certify the class.

On the other hand, Healy cannot be represented by the same counsel as McNichols, who may be liable in indemnity or contribution for any judgment in favor of the class. Certification therefore is conditioned on Mr. Joyce’s withdrawal as McNichols’ attorney.

RULE 23(b)

Healy seeks certification under Rule 23(b)(3), Fed.R.Civ.P. This provision is satisfied if the court finds that common questions of fact or law predominate over individual questions, and if the court finds also that a class action is a superior method of adjudicating this controversy fairly and efficiently. Factors relevant to the latter determination include the class members’ interest in pursuing individual litigation, the extent of litigation already pending, the desirability of concentrating litigation in a single forum, and the ease or difficulty of managing a class action.

Loeb Rhoades argues, as it did in opposing McNichols’ motion for certification, that individual questions predominate, because fraudulent oral communications are alleged. The court believes that Loeb Rhoades’ argument is misplaced, since this is a fraud-on-the-market case. When direct reliance on fraudulent statements is alleged, then it is clear that written communications more appropriately form the basis for a class action. An entire class may have read the same prospectus, but it is unlikely that an entire class heard exactly the same oral communication. So, while the fraudulent nature of a written communication can be a question common to the entire class, the fraudulent nature of any oral communication is a question pertinent only to the claim of a plaintiff who heard that particular oral communication. In a fraud-on-the-market case, on the other hand, the plaintiff class does not allege direct reliance on fraudulent communications; instead, it alleges reliance on a market price which was inflated by fraudulent communications. It seems immaterial whether the fraudulent information was injected into the market by means of oral communication or by means of written communication. The same communications, whether oral or written, underlie the claims of all class members, and must be proved in an individual action as well as in a class action.

With one exception, Loeb Rhoades’ cases on oral communications are not fraud-on-the-market cases. The exception, Spelman v. F & M Bank and Trust Co., [1981-1982] Fed.Sec.L.Rep. (CCH) ¶ 98,426 (N.D.Okla. 1981) (abstract), is not inconsistent with the court’s view of the law. In Spelman plaintiffs attempted to proceed on a fraud-on-the-market theory, but the court denied certification on the basis that several of the named plaintiffs had relied directly on oral or written communications. The court was not concerned with the question whether the alleged fraud on the market was accomplished orally or in writing.

Proving the alleged fraud on the market is an enormous task, overshadowing individual questions. The court finds also that a class action is a superior method of adjudicating this controversy. This is a (b)(3) class, and class members with a strong interest in controlling their own litigation can [543]*543opt out of the class. The individual litigation already pending has been brought, in some instances, by plaintiffs who allege direct reliance on statements, not only on the integrity of the market.

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Bluebook (online)
99 F.R.D. 540, 37 Fed. R. Serv. 2d 1078, 1983 U.S. Dist. LEXIS 16130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/healy-v-loeb-rhoades-co-ilnd-1983.