Hoexter v. Simmons

140 F.R.D. 416, 1991 U.S. Dist. LEXIS 10055, 1991 WL 286513
CourtDistrict Court, D. Arizona
DecidedMay 22, 1991
DocketNos. CIV. 89-1069 PHX RCB, 89-1073 PHX RCB, 89-1093 PHX RCB, 89-1131 PHX RCB, 89-1732 PHX RCB, 89-1733 PHX RCB, 89-1823 PHX RCB, 89-1855 PHX RCB, 89-1935 PHX RCB and 89-0347 PHX RCB
StatusPublished
Cited by21 cases

This text of 140 F.R.D. 416 (Hoexter v. Simmons) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoexter v. Simmons, 140 F.R.D. 416, 1991 U.S. Dist. LEXIS 10055, 1991 WL 286513 (D. Ariz. 1991).

Opinion

ORDER CERTIFYING CLASS

BROOMFIELD, District Judge.

Plaintiffs seek certification of a class that would include “All persons who purchased Valley National Corporation common stock from June 30, 1988 through October 18, 1989 (the “Class Period”), and who suffered damages as a result thereof (the “Class”),” excluding defendants and related parties. Plaintiffs assert that the Class meets the four prerequisites to a class action set forth in Fed.R.Civ.P. 23(a) and the requirements for maintaining a class action prescribed by Rule 23(b)(3). Defendants object to certification of the Class on the grounds that it fails to satisfy certain of the requirements for bringing a class action under Rule 23.

Under Rule 23(a), a class action may be brought 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.

Fed.R.Civ.P. 23(a). Additionally, the action must meet one of several alternative requirements under Fed.R.Civ.P. 23(b). Plaintiffs seek to maintain a class under Rule 23(b)(3), which requires that the court find:

that the questions of law or fact common to the members of the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Fed.R.Civ.P. 23(b)(3).

Defendants do not contest plaintiffs’ assertion that the Class satisfies the prerequisites of Rule 23(a)(1) and (2) regarding numerosity and common questions of law and fact, and the court finds that those requirements are met. Defendants contend, however, that the claims of the Class representatives are not typical of the claims of numerous other members of the Class, that common questions of law and fact do not predominate over individual questions, that a class action is not a superior method of resolving the controversy, and that not all of the named plaintiffs are adequate class representatives. Having considered the parties’ written and oral arguments on these issues, the court will grant plaintiffs’ motion to certify the class.

I. PREDOMINANCE OF COMMON QUESTIONS AS TO FEDERAL CLAIMS

With regard to the federal securities law claims, plaintiffs assert that the claims of the Class members raise questions concerning a “common nucleus of misrepresentations, material omissions, and market manipulations,” that predominate over any individual questions of “damages, causation or reliance.” Motion at 14 (quoting In re Unioil Securities Litigation, 107 F.R.D. 615, 622 (C.D.Cal.1985). Defendants counter that individual questions of [419]*419reliance predominate over common questions in this case, because plaintiffs may not employ the fraud-on-the-market theory to establish reliance in cases involving securities traded over the counter (OTC). Reliance will be presumed with regard to securities traded on national markets, because the securities prices on an “open and developed” market are presumed to be determined by material information concerning the company that is available to investors. Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). Defendants argue that the OTC market is not sufficiently developed or efficient to support application of the theory to securities traded on that market. Defendants rely on a recently-decided district court case, Epstein v. American Reserve Corp., No. 79 C 4767 (N.D.Ill.1988) (available on Westlaw, 1988 WL 40500).

Plaintiffs argue in their reply that the OTC market is sufficiently developed and efficient to support application of the fraud-on-the-market theory to securities traded OTC. Plaintiffs present statistical information in support of their contention that the market in which Valley National shares are traded and were traded during the Class Period involves a high volume of active trading. Plaintiffs also cite several decisions in which courts have refused to assume the OTC market to be inefficient or have simply assumed that the fraud-on-the-market theory applies to the OTC market. See e.g., Finkel v. Docutel-Olivetti Corp., 817 F.2d 356, 364 n. 25 (5th Cir.1987); Cammer v. Bloom, 711 F.Supp. 1264, 1980-93 (D.N.J.1989).

Plaintiffs also contend that the fraud-on-the-market theory applies to the Valley National stock because the market for that stock during the relevant period, regardless of where it was traded, was itself efficient, that is, the price of the stock reflected disclosed information about the company’s business. Plaintiffs analyze the efficiency of the market for Valley National shares, employing the factors suggested in Cammer v. Bloom, 711 F.Supp. at 1286-87 and Hurley v. Federal Deposit Insurance Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Plaintiffs conclude that the Valley National market was efficient based on the volume of actively traded shares, investments analysts’ following of the stock, Valley National’s status as a Form S-3 registrant, and the apparent strong reaction in the market to the positive and negative disclosures at issue in this case. Plaintiffs also contend that defendants raise the issue prematurely, because it goes to the merits of the case.

The court agrees with plaintiffs- that the mere fact that the Valley National shares were traded on the OTC market rather than on a national exchange does not prevent certification of the Class. Based on the authorities cited by plaintiffs and the rationale underlying the fraud-on-the-market theory, the court has determined as a preliminary matter that the OTC market as a whole and the market for Valley National shares in particular were sufficiently efficient to allow plaintiffs to establish reliance by employing that theory. The court declines to follow Epstein, which decided this question without the benefit of briefing by the parties and without explaining the grounds for its determination. Having found that the members of the Class are likely to raise common issues of fact as to reliance in attempting to prove their federal securities law claims, and accepting as undisputed that the other significant questions of law and fact are common to the claims of all Class members, -the court finds as to the federal law claims that common questions predominate over issues affecting only individual class members.

II. TYPICALITY AND ADEQUACY OF CLASS REPRESENTATIVES

Plaintiffs assert that the claims of the proposed Class representatives are typical of the claims of other Class members in that they allege injury from reliance upon the same false or misleading statements.

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

Related

Hamm v. Mercedes-Benz USA, LLC
N.D. California, 2021
Barnhart v. Ingalls
275 So. 3d 1112 (Supreme Court of Alabama, 2018)
Baldwin Mut. Ins. Co. v. McCain
260 So. 3d 801 (Supreme Court of Alabama, 2018)
In re Allstate Life Insurance
971 F. Supp. 2d 930 (D. Arizona, 2013)
Albert Binder v. Thomas Gillespie
184 F.3d 1059 (Ninth Circuit, 1999)
Binder v. Gillespie
172 F.3d 649 (Ninth Circuit, 1999)
In re Ford Motor Co. Vehicle Paint Litigation
182 F.R.D. 214 (E.D. Louisiana, 1998)
Eisenstadt v. Allen
113 F.3d 1240 (Ninth Circuit, 1997)
Roseman v. Sports & Recreation
165 F.R.D. 108 (M.D. Florida, 1996)
In re Gibson Greetings Securities Litigation
159 F.R.D. 499 (S.D. Ohio, 1994)
Welling v. Alexy
155 F.R.D. 654 (N.D. California, 1994)
Renz v. Schreiber
832 F. Supp. 766 (D. New Jersey, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
140 F.R.D. 416, 1991 U.S. Dist. LEXIS 10055, 1991 WL 286513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoexter-v-simmons-azd-1991.