In re Blech Securities Litigation

187 F.R.D. 97, 1999 WL 304820
CourtDistrict Court, S.D. New York
DecidedMay 11, 1999
DocketNo. 94 Civ. 7696(RWS)
StatusPublished
Cited by43 cases

This text of 187 F.R.D. 97 (In re Blech Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Blech Securities Litigation, 187 F.R.D. 97, 1999 WL 304820 (S.D.N.Y. 1999).

Opinion

OPINION

SWEET, District Judge.

The plaintiffs in these consolidated actions alleging securities and common law fraud have moved for certification of a class pursuant to Rules 23(a) and 23(b)3, Fed.R.Civ.P. The motion has been opposed by defendants Bear Stearns & Co., Inc. (“Bear Stearns”) and Baird Patrick & Co. (“Baird Patrick”). The motion is granted, and classes will be certified in accordance with the conclusions set forth below.

The Parties

Each of the seventeen named plaintiffs in these actions (the “Plaintiffs”) purchased securities of certain of twenty-two biotechnology companies in either the primary or secondary market (the “Blech Securities”),1 which it is alleged were manipulated and affected by the activities of defendants Blech & Co. (“Blech & Co.”), David Blech (“Blech”), and others from July 1, 1991 to September 21, 1994 (the “Class Period”). The Plaintiffs seek certification to bring this action on behalf of a class of persons similarly situated.

Defendant Bear Stearns is an investment, banking and securities trading and brokerage firm organized and existing under the laws of Delaware with its principal place of business in Manhattan. Bear Stearns is registered with the Securities and Exchange Commission (the “SEC”) and is a member of the National Association of Securities Dealers (“NASD”). Bear Stearns acted as Blech & Co.’s clearing agent for all securities transactions involving Blech & Co. from September 1993 through the end of the relevant Class Period.

Defendant Baird Patrick is a registered broker-dealer with its principal place of business in Manhattan. Baird Patrick is registered with the SEC and is a member of the NASD. During the period of time relevant to this action, Baird Patrick was a market-maker for certain of the Blech Securities.

Defendant Blech, a resident of New York, was at all times material to this action managing director and sole shareholder of Blech & Co.

Blech & Co., a New York corporation with its principal place of business in Manhattan, was a registered broker-dealer. During the period relevant to this case, Blech & Co. acted as an underwriter or market-maker or both for numerous companies, primarily in the biotechnology field. Blech & Co. ceased operations on September 22, 1994, having failed to maintain minimum capital requirements. At that time, Blech & Co. was the principal market-maker for the Blech Securities and had about six thousand customer accounts in offices in New York, Boston, Atlanta, and Boca Raton, Florida.

Defendant Mark S. Germain (“Germain”) was at all material times a Managing Director of Blech & Co. Germain served on the board of directors of ASI, Ecogen, Microprobe, Neoprobe, LXR, NeoRx, Pharmos, and Genemedicine, companies that have been named as issuer defendants and whose stocks were Blech Securities.

Defendant Chancellor Capital Management, Inc. (“Chancellor”) is a corporation with its principal place of business in Manhattan. It has been registered with the SEC as an investment advisor since 1973. Chancellor’s investment management activities on behalf of its managed accounts are conducted by four business units, one of which is the Alternative Asset Management Group (“AAMG”). Defendant Parag Saxena (“Sax-ena”) was a managing director of Chancellor and a member of the AAMG.

[100]*100 Prior Proceedings

The prior proceedings in this action are set forth in the prior opinions of this court, familiarity with which is assumed. See In re Blech Securities Litigation, 928 F.Supp. 1279 (S.D.N.Y.1996) (“Blech I”); In re Blech Securities Litigation, 1997 WL 20833 (S.D.N.Y. January 21, 1997) (“Blech II ”); In re Blech Securities Litigation, 961 F.Supp. 569 (S.D.N.Y.1997) (“Blech III”).

This litigation was originally commenced as four separate actions filed on or about October 21, 1994 against Blech & Co., Blech and various other defendants, alleging violations of the Racketeer Influenced And Corrupt Practices Act (“RICO”), Section 10(b) of the Securities Exchange Act of 1934, and common law fraud and deceit. By order dated December 12, 1994, the four actions were consolidated and on March 27, 1995, plaintiff filed an Amended Consolidated Class Action Complaint. On June 6, 1996, the Court granted Bear Stearns’ motion to dismiss the claims asserted as to Bear Stearns, and all claims arising from events before October 21, 1991, were dismissed as time-barred. See Blech I. Therefore, Plaintiffs’ proposed class period cannot start at July 1, 1991. Hereinafter, the term “proposed class period” will refer to the period October 21, 1991 through September 21,1994.

On July 26, 1996, Plaintiffs filed a Second Amended Consolidated Class Action Complaint (the “Complaint”) against defendants Blech & Co., Blech, Germain, Nicholas Madonia, Bear Stearns, Baird Patrick, Chancellor and Saxena, alleging violations of Section 10(b) and 20(a) of the Securities Exchange Act, and Rule 10b-5 thereunder, and alleging that during the period of July 1, 1991 through September 21, 1994, defendant Blech & Co. conspired with other individuals and corporate defendants to manipulate and inflate the prices of the Blech Securities, securities issued by twenty-four different biotechnology companies. Plaintiffs Section 10(b) claim is asserted against Bear Stearns “for the period during which [Bear Stearns] was Blech & Co.’s clearing agent” (Compl.¶ 99)— i.e., from September 27, 1993 through September 21, 1994.

On April 1, 1997, motions to dismiss the Second Amended Complaint were granted in part and denied in part in Blech III.

Discovery has proceeded under various orders and agreements. The instant motion for class certification was filed on October 2, 1998, and by agreement between the parties was heard and deemed submitted on February 17, 1999. The most recent letter submission was made on April 19, 1999.

The Requested Class

The Plaintiffs seek certification of this action as a class action, pursuant to Rules 23(a) and 23(b)(3) of the Fed.R.Civ.P. on behalf of a class of persons who purchased Blech Securities during the Class Period and were damaged thereby, excepting any person who purchased Blech Securities pursuant to private placements or any other transaction not on a public offering or on the public market. (Compl.¶¶ 1, 43.) The Complaint alleges that during the Class Period as a result of defendants’ unlawful scheme and conduct in violation of the antifraud provisions of the securities laws, as well as the common law of fraud and deceit (Compl.¶ 1), Plaintiffs and the other members of Class purchased Blech Securities at prices that were artificially manipulated, inflated and maintained by the defendants.

The Facts

For purposes of deciding a Rule 23 motion for class certification, the allegations set forth in the complaint are accepted as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978); Vine v. Beneficial Finance Co., 374 F.2d 627, 632-33 (2d Cir.1967); In re NASDAQ Market-Makers Antitrust Litig., 172 F.R.D. 119 (S.D.N.Y.1997).

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Bluebook (online)
187 F.R.D. 97, 1999 WL 304820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-blech-securities-litigation-nysd-1999.