In re Boardwalk Marketplace Securities Litigation

122 F.R.D. 4, 1988 U.S. Dist. LEXIS 14960, 1988 WL 94712
CourtDistrict Court, D. Connecticut
DecidedSeptember 12, 1988
DocketNo. MDL No. 712 (WWE)
StatusPublished
Cited by8 cases

This text of 122 F.R.D. 4 (In re Boardwalk Marketplace Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Boardwalk Marketplace Securities Litigation, 122 F.R.D. 4, 1988 U.S. Dist. LEXIS 14960, 1988 WL 94712 (D. Conn. 1988).

Opinion

RULING ON MOTION FOR CLASS CERTIFICATION

EGINTON, District Judge.

The plaintiffs are investors who purchased partnership interests in nine related [5]*5limited partnerships ostensibly organized to redevelop property in Atlantic City, New Jersey. To finance their purchases, many investors executed promissory notes payable to American Funding Limited. The redevelopment scheme collapsed, and many investors ceased making payments on their notes. The defendants include promoters, financial advisors, and banking institutions alleged to be involved in the fraudulent scheme. The investors claim, inter alia, that the defendant banks are not holders in due course because, at the time they acquired the notes, they should have been aware of investor defenses against enforcement of the notes. See In re Boardwalk Marketplace Securities Litigation, 668 F.Supp. 115 (D.Conn.1987). They further claim that the defendants have engaged in fraudulent conduct in violation of the Racketeer Influenced and Corrupt Organizations Act and the Securities Exchange Act of 1934. Pending is the investors’ motion for class certification. For the reasons set forth below, the motion for class certification is GRANTED.

I. Background

The Supreme Court has cautioned lower courts to avoid a preliminary inquiry into the merits of a suit to determine whether it may be conducted as a class action. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974). Accordingly, when deciding a motion for class certification, a court may accept the allegations in the complaint as true. See, e.g., Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978). The Court finds the following facts solely for the purpose of ruling on the motion for class certification.

In 1985, Nashua Trust Company (“Nat-co”), a newly-formed, Texas-chartered trust company, initiated what has become known as the “Boardwalk Marketplace” project. Natco’s undisclosed principal was convicted swindler John Peter Galanis. The plaintiffs contend that 1200 investors were defrauded into investing approximately $82 million as a result of the actions of defendant Galanis and his associates.

The Boardwalk Marketplace project entailed the formation of nine Connecticut limited partnerships for the purpose of funding the proposed rehabilitation of a number of dilapidated properties located near the boardwalk in Atlantic City. Investors for all nine limited partnerships were solicited through the use of similar private offering memoranda. The offering materials set forth facts such as the characteristics of buildings to be refurbished and financial projections. Investors were told that they could expect tax benefits as the project neared completion.

The offering materials further indicated that investors could finance their purchases of partnership interests through a purportedly independent New Jersey lending institution named American Funding Limited. However, the offering materials did not disclose that American Funding was not a truly independent entity because it was run by defendant Jay Botchman. Botchman allegedly was paid $12,000 a month to find sources of funds for Natco. In addition, he had been named as a co-defendant with Galanis in a Texas civil suit involving a claim of fraud in the sale of limited partnership interests.

Unaware that Galanis and Botchman were involved in the scheme, the majority of investors borrowed money from American Funding. Investors financing their purchases through American Funding executed promissory notes which called for installment payments to be made over a series of years. In turn, American Funding sold the notes to other banks which also are named as defendants in this litigation. Most investors purchased an interest in only one of the nine limited partnerships. Most partnership interests were sold in units of $50,000 or $100,000.

Without warning, Natco filed for bankruptcy under Chapter 11 on June 5, 1986. Ten days later, a newspaper article revealed that one of the true promoters of the Boardwalk Marketplace project was Galanis.

The plaintiffs have charged over forty defendants with varying acts of misconduct in connection with this complicated scheme. [6]*6The defendants not only include Galanis and Botchman, but also the entities which worked on financial projections for some of the partnerships, prepared portions of the offering materials, and financed the purchases of the partnership interests.

II. Discussion

Approximately 45 investors seek to act as class representatives. Before a suit may be certified as a class action, it must meet all the requirements in Fed.R.Civ.P. 23(a) and also fall within one of the subsections of Rule 23(b). The plaintiffs seek class certification under Rule 23(b)(3). The defendants primarily argue that individual issues predominate in this suit, thus precluding class certification.

A. Numerosity

The plaintiffs must show that “the class is so numerous that joinder of all members is impracticable____” Fed.R.Civ. P. 23(a)(1). The parties apparently agree that approximately 1200 individuals invested in at least one of the nine limited partnerships which made up the Boardwalk Marketplace project. The plaintiffs have satisfied the numerosity requirement. See Michaels v. Ambassador Group, Inc., 110 F.R.D. 84, 88 (E.D.N.Y.1986) (1000 class members satisfies requirement.)

B. Common Questions of Law or Fact

The Court may certify this suit as a class action if “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Likewise, under Fed.R.Civ.P. 23(b)(3), the Court may allow a plaintiff to maintain a suit as a class action if “the questions of law or fact common to the members of the class predominate over any question affecting only individual members____”

The plaintiffs have alleged a course of conduct which satisfies the “common questions” requirement of Rule 23. Proposed class members allege that they have sustained monetary damages as a result of the defendants’ fraudulent concealment of the participation of Galanis and Botchman in the Boardwalk Marketplace project, as well as the bogus nature of the project itself. For the most part, the same legal standard must be applied to determine whether any particular defendant’s role in the scheme was unlawful. The similarity of questions of fact and law raised in the complaint suggests that certification is appropriate. See Green v. Wolf Corp., 406 F.2d 291, 300 (2d Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969).

The defendants argue that individual issues of reliance predominate in this litigation and thus preclude class certification.

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Bluebook (online)
122 F.R.D. 4, 1988 U.S. Dist. LEXIS 14960, 1988 WL 94712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-boardwalk-marketplace-securities-litigation-ctd-1988.