In re Amerifirst Securities Litigation

139 F.R.D. 423, 1991 U.S. Dist. LEXIS 19463, 1991 WL 230208
CourtDistrict Court, S.D. Florida
DecidedAugust 8, 1991
DocketNo. 89-2614-CIV
StatusPublished
Cited by49 cases

This text of 139 F.R.D. 423 (In re Amerifirst Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Amerifirst Securities Litigation, 139 F.R.D. 423, 1991 U.S. Dist. LEXIS 19463, 1991 WL 230208 (S.D. Fla. 1991).

Opinion

ORDER GRANTING CLASS CERTIFICATION

HOEVELER, District Judge.

THIS CAUSE COMES before the Court upon Plaintiffs’ Motion for Class Certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure.

BACKGROUND

Plaintiffs bring an action, pursuant to § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5 promulgated thereunder, 17 C.F.R. 240.-10b-5, on behalf of themselves and all other persons who purchased or otherwise acquired AmeriFirst common stock between November 5, 1986 and December 26, 1989 (the “Class Period”) on the NASDAQ/National Market System1 against AmeriFirst Bank (“AmeriFirst”); certain of its former officers and directors; two officers of Am-eriFirst Development Corporation (“ADCO”), a wholly-owned service corporation subsidiary of AmeriFirst; James C. Carr, a real estate developer who entered into various business arrangements with AmeriFirst and ADCO; and the accounting firms of Deloitte & Touche (“Deloitte”) and Ernst & Young, the respective outside auditors of AmeriFirst and ADCO. In general, Plaintiffs allege that Defendants participated in a fraudulent scheme to artificially inflate the apparent market value of Amer-iFirst in order to convert AmeriFirst from a mutual thrift institution to a publicly traded stock company and ultimately sell the bank to a third party at a substantial profit to themselves. To implement their plan, Plaintiffs assert that Defendants attempted to inflate the value of Ameri-First’s commercial real estate (“CRE”) loan portfolio through establishing policies and procedures that disregarded prudent and lawful banking practices, including ignoring routinely-considered loan risks. Ultimately, these procedures and practices allegedly resulted in an increased number of nonperforming loans. In order to conceal the problems that developed with Ameri-First’s loan portfolio, Plaintiffs further complain that Defendants permitted Ameri-First to make improper modifications, ex-tentions or advancements on existing problem loans rather than foreclose on the loans or add them to AmeriFirst’s loan loss reserves. Had Defendants revealed the true value of, and risks associated with, AmeriFirst’s outstanding loans, Plaintiffs allege that the market value of the Ameri-First common stock would have declined.

In addition to the improper conduct concerning AmeriFirst’s loan policies and procedures, Plaintiffs contend that Defendants unlawfully utilized ADCO as an instrumentality to help effectuate and conceal their fraudulent scheme. As ADCO’s financial statements were consolidated in the financial statements of AmeriFirst, Plaintiffs assert that Defendants were able to manipulate the appearance of ADCO’s profitability in order to enhance that of AmeriFirst. They allegedly overstated ADCO’s profits by manipulating the sales of ADCO real estate with the aid of Defendant Carr, who was available on short notice to purchase the property—often at the end of a fiscal year or quarter—and by utilizing erroneous accounting methods.

As for the claims against Deloitte and Ernst & Young, Plaintiffs contend that the accounting firms willfully or recklessly ignored clear warning signs that the management defendants were engaging in improper practices to artificially inflate the market value of AmeriFirst. By allegedly failing to act in accordance with proper auditing practices and by, therefore, issuing unqualified opinions on the financial statements of AmeriFirst and ADCO which misrepresented the true financial condition of the institutions, Plaintiffs assert that De-loitte and Ernst & Young contributed to the overall success of the fraud against AmeriFirst’s investors.

[427]*427DISCUSSION

In order to maintain a suit as a class action, plaintiffs must show that the four prerequisites of Rule 23(a) have been met and that one of the provisions of Rule 23(b) applies. Fed.R.Civ.P. 23; Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 721 n. 2 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1221, 99 L.Ed.2d 421 (1988). Thus, representatives may sue on behalf of a class 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 representatives are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Further, because Plaintiffs here seek class certification under Rule 23(b)(3), the Court must find that (1) the questions of law or fact common to the members of the class predominate over those questions affecting individual members only, and (2) 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); Kirkpatrick, 827 F.2d at 721 n. 2.

Those seeking to certify their suit as a class action under Rule 23 bear the burden of establishing the specific prerequisites. Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984); Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981). In determining whether the named plaintiffs have met their burden, the court’s inquiry is limited to whether the requirements of Rule 23 have been satisfied; therefore, the court shall not consider the merits of the plaintiffs’ claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732, 748’ (1974); Kirkpatrick, 827 F.2d at 722; Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984). However, this principle should not be invoked so rigidly so as to artificially limit a trial court’s examination of the factors necessary to make a reasoned determination of whether Rule 23 has been satisfied. Love v. Turlington, 733 F.2d at 1564. Accordingly, a court may look beyond the pleadings in determining whether a motion for class certification should be granted. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740, 752 (1982); Kirkpatrick, 827 F.2d at 722.

It is well-recognized that class actions are a particularly appropriate means for resolving securities fraud actions. See Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985). Moreover, “the interests of justice require that in a doubtful case ... any error, if there is to be one, should be committed in favor of allowing a class action.” Id. (quoting Esplin v. Hirschi,

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Bluebook (online)
139 F.R.D. 423, 1991 U.S. Dist. LEXIS 19463, 1991 WL 230208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-amerifirst-securities-litigation-flsd-1991.