In re Discovery Zone Securities Litigation

169 F.R.D. 104, 1996 U.S. Dist. LEXIS 15078, 1996 WL 549494
CourtDistrict Court, N.D. Illinois
DecidedSeptember 27, 1996
DocketNo. 94 C 7089
StatusPublished
Cited by20 cases

This text of 169 F.R.D. 104 (In re Discovery Zone Securities Litigation) 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
In re Discovery Zone Securities Litigation, 169 F.R.D. 104, 1996 U.S. Dist. LEXIS 15078, 1996 WL 549494 (N.D. Ill. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

This litigation centers on allegations that Discovery Zone, Inc. (“DZ”) and several of its high-ranking corporate officials violated the federal securities laws by perpetrating a fraud on the investing public. Plaintiffs claim that the defendants1 advanced this fraud by offending generally accepted accounting principles, misrepresenting the financial effects of a major acquisition, and making predictions of growth with no reasonable basis. This series of acts is said to have inflated stock prices, inducing investors to buy into DZ, only to see their stock decline in value after defendants unloaded their shares and disclosed the true state of the company.

In a concurrently issued opinion (“Discovery Zone I”), this Court held that plaintiffs stated a claim for securities fraud under §§ 10 and 20(a) of the 1934 Securities Exchange Act and SEC Rule 10b-5, based on alleged misrepresentations occurring up through January 17, 1995.2 This opinion (“Discovery Zone II”), addresses the somewhat related issue of whether plaintiffs have met the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs move this Court to [107]*107certify a class comprised of “all persons3 who purchased the common stock of Discovery Zone, Inc.” between February 17, 1994, and September 15,1995. Pl.Second Am.Mot. ¶¶ 1-2.4 For the reasons stated below, plaintiffs’ motion for class certification is granted as modified by the Court. The class period will end on January 17, 1995.

ANALYSIS

Plaintiffs have the burden of establishing that class certification is appropriate. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Rule 23 of the Federal Rules of Civil Procedure assigns plaintiffs a number of tasks in this endeavor. First, they must satisfy four conditions set forth in Rule 23(a):

(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 party will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a); Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993); see also Retired Chicago Police, 7 F.3d at 596 (“All of these elements are prerequisites to certification; failure to meet any one of them precludes certification as a class.”). Second, plaintiffs must meet one of the three criteria found in Rule 23(b)(1)-(3). Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977). Subsection (3), on which plaintiffs rely, permits certification when questions of law or fact common to class members predominate over questions affecting only individual members, and when a class action, as compared with other available litigation options, is a superior vehicle for fairly and efficiently adjudicating the controversy. Fed.R.Civ.P. 23(b)(3).

Defendants raise challenges to the certification based only on subsections (3) and (4) of Rule 23(a), the class representatives’ typicality and adequacy of representation. The Court will therefore limit its analysis to these claims.5 Of these issues, the Court is most concerned with whether the class representatives can fairly and adequately protect class interests.

I. Adequacy of Representation

The named plaintiffs in a class action occupy the critical role of “fairly and adequately protect[ing] the interests of the class.” Fed.R.Civ.P. 23(a)(4). The “adequacy” standards are threefold: (1) the chosen class representative cannot have antagonistic or conflicting claims with other members of the class, Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992), cert. denied, 506 U.S. 1051, 113 S.Ct. 972, 122 L.Ed.2d 127 (1993); (2) the named representative must have “a sufficient interest in the outcome to ensure vigorous advocacy,” Riordan v. Smith Barney, 113 F.R.D. 60, 64 (N.D.Ill.1986); and (3) counsel for the named plaintiff must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously. Kriendler v. Chemical Waste Mgmt., Inc., 877 F.Supp. 1140, 1159 (N.D.Ill.1995).

Defendants challenge all three elements. We address each in turn.

[108]*108A. Antagonistic Claims

First and foremost, a named plaintiff must not have interests antagonistic to those of the class. Rosario, 963 F.2d at 1018. Defendants argue that two class representatives, Randy Stark and Bernard Weisburgh, fail this test. Stark is the personal stockbroker for proposed class counsel Mark Gardy; Weisburgh serves as personal broker to proposed class counsel Dennis Johnson. (Stark Tr. at 53; Weisburgh Tr. at 12-13).6 Defendants contend that Stark and Weisburgh’s interest in maximizing their clients’ attorneys’ fees — fees that potentially could be invested with them — puts them at odds with the rest of the class, whose interest lies in being fully compensated for their losses. This opposition is said to be heightened given that the potential attorneys’ fees far exceed the few hundred dollars that Stark and Weisburgh could recover in personal damages.

Defendants add that attorney Johnson has represented Weisburgh, his relatives, and friends in seven class action securities fraud suits arising out of stock purchases that Weisburgh brokered. (Weisburgh Tr. at 12). Stark, moreover, has referred some of his clients to attorney Gardy for representation on securities fraud claims. (Stark Tr. at 47).

Plaintiffs respond by claiming that the situation is no more nefarious than if the representatives were class counsel’s grocer or gas station attendant. While counsel might indeed use the attorneys’ fees the case generated to purchase more groceries or gas, plaintiffs maintain that this would not taint the representation. Plaintiffs additionally point to Weisburgh’s testimony that there are no “quid pro quos” for his acting as a plaintiff, and that he has never promised to refer clients to Johnson in exchange for Johnson’s maintaining his account.

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Bluebook (online)
169 F.R.D. 104, 1996 U.S. Dist. LEXIS 15078, 1996 WL 549494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-discovery-zone-securities-litigation-ilnd-1996.