In re Evergreen Ultra Short Opportunities Fund Securities Litigation

275 F.R.D. 382, 2011 U.S. Dist. LEXIS 89503, 2011 WL 3567830
CourtDistrict Court, D. Massachusetts
DecidedAugust 10, 2011
DocketCivil Action No. 08-11064-NMG
StatusPublished
Cited by7 cases

This text of 275 F.R.D. 382 (In re Evergreen Ultra Short Opportunities Fund Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Evergreen Ultra Short Opportunities Fund Securities Litigation, 275 F.R.D. 382, 2011 U.S. Dist. LEXIS 89503, 2011 WL 3567830 (D. Mass. 2011).

Opinion

[385]*385MEMORANDUM & ORDER

GORTON, District Judge.

This is a private securities class action brought by persons or entities (“the plaintiffs”) who purchased or otherwise acquired shares of a mutual fund called Evergreen Ultra Short Opportunities Fund (“the Fund”) between October 28, 2005, and June 23, 2008 (“the Class Period”). Before the Court is the plaintiffs’ motion for class certification.

I. Factual Background

The plaintiffs have sued the companies that market, manage and advise the Fund (“the Corporate Defendants”) as well as some of the officers, directors and trustees of those companies (“the Individual Defendants”). The Corporate Defendants include 1) Evergreen Fixed Income Trust (“Evergreen Trust”), the issuer of the Fund’s shares, 2) Evergreen Investment Management Company, LLC (“Evergreen Investment”), the Fund’s investment advisor, 3) Wachovia Corporation (“Wachovia”), Evergreen Investment’s corporate parent, and 4) Evergreen Investment Services, the underwriter and distributor of the shares of the Fund sold by Evergreen Trust. The Individual Defendants include Dennis Ferro (“Ferro”), the President and Chief Executive Officer of Evergreen Investment and the Principal Executive Officer of Evergreen Trust, Kasey Phillips (“Phillips”), the Principal Financial Officer of Evergreen Trust during the Class Period, and 12 members of the Evergreen Board of Trustees (collectively, “the Trustee Defendants”).1

The plaintiffs allege that the defendants violated federal securities law by registering, marketing and selling the Fund as a safe, liquid and stable investment when, in fact, it was comprised of illiquid, risky and volatile securities. Specifically, they allege that the defendants’ offering materials, including registration statements, prospectuses and certified shareholder reports, 1) contained materially false and misleading statements about the objective and features of the Fund and 2) omitted essential facts that either made the statements misleading or were required in order to render the statements non-misleading.

The plaintiffs allege that the defendants marketed the Fund to investors as a higher-yielding alternative to money-market funds, offering a combination of safety and liquidity. The offering materials stated, inter alia, that 1) the Fund’s objective was to “provide income consistent with preservation of capital and low principal fluctuation”, 2) the Fund intended to “maintain an average portfolio duration of approximately one year or less”, and 3) the Fund would invest no more than 15% of its net assets in illiquid securities. In reality, however, the Fund’s average portfolio duration exceeded one year, its investments were increasingly illiquid and it invest[386]*386ed in riskier-than-represented mortgage-backed securities (“MBSs”). The plaintiffs also allege that the defendants artificially inflated the Fund’s net asset value (“NAV”) and continued heavily investing in risky MBSs, many of which were attached to sub-prime mortgages, even as news accounts revealed troubles in the mortgage and credit markets.

Throughout the Class Period, the Fund traded in a stable range from $9-$10 per share, allegedly due, at least in part, to the defendants’ artificial inflation of its NAV. Eventually, however, the true risks presented by the Fund’s assets (which were allegedly unknown to the investing public during the Class Period), materialized, resulting in the re-pricing of the Fund’s assets, the Fund’s closure and significant losses to the Fund’s investors. On June 19, 2008, when Evergreen Trust announced that the Fund would be liquidated, shareholders of record received a cash distribution based on a $7.48 per share NAV, significantly lower than the average value of the Fund’s shares during the Class Period. At the time of the Fund’s liquidation, its assets were worth only $403 million (over $300 million less than the NAV it reported nine months earlier). The plaintiffs allege that they lost approximately 25% of their investments due to the defendants’ misrepresentations.

In June, 2009, plaintiffs received $1,065 million as a result of a regulatory settlement between some defendants and the Securities and Exchange Commission. Plaintiffs maintain that the damages suffered as a result of the alleged false statements at issue in this action were not covered by the regulatory settlements. The regulatory settlements were allegedly limited to damages resulting from the overstatement of the Fund’s net asset value (“NAV”) during part of the proposed class period. Here, plaintiffs allege that their claims are much broader because they encompass false statements regarding the Fund’s investment strategy, objectives and risks over a longer period of time.

Plaintiffs’ complaint includes three counts against the various defendants: 1) violations of Section 11 of the Securities Act of 1933 (“the Securities Act”), 15 U.S.C. § 77k, against Evergreen Trust, Evergreen Services and the Individual Defendants (Count I), 2) violations of Section 12(A)(2) of the Securities Act, 15 U.S.C. § 111, against all defendants (Count II) and 3) violations of Section 15 of the Securities Act, 15 U.S.C. § llo, against Wachovia, Evergreen Investments and the Individual Defendants (Count III).

II. Procedural History

This action originated as three separate class actions alleging substantially similar violations of federal securities laws against Evergreen Trust and related entities. Those actions were consolidated into the present class action and, by an order entered May 7, 2009, the Court appointed Evergreen Investor Group and the Bricklayers Group as lead plaintiffs for the Class and the law firms of Coughlin Stoia Geller Rudman & Robbins, LLP, Page Perry LLC and Cohen, Placitella & Roth, P.C. to serve as co-lead counsel.2

Lead plaintiffs filed their First Amended Complaint on April 30, 2009. On July 15, 2009, individual defendants Phillips and Fer-ro and corporate defendants Wachovia, Evergreen Investment and Evergreen Investment Services filed an answer, raising various affirmative defenses including, inter alia, failure to state a claim, statute of limitations, res judicata, laches, business judgment rule, lack of privity, due diligence and failure to mitigate damages. On that same day, the remaining defendants, Evergreen Trust and the Trustee Defendants, moved to dismiss all the claims against them. On March 31, 2010, 705 F.Supp.2d 86 (D.Mass.2010) the Court entered a Memorandum & Order allowing the motion to dismiss with respect to the Trustee Defendants in Count II only but otherwise denying it. A scheduling conference was thereafter held on June 24, 2010, in [387]*387accordance with which, plaintiffs have filed their pending motion for class certification.

III. Class Certifíeation

Plaintiffs seek an order pursuant to Fed. R.Civ.P. 23 appointing them as class representatives, appointing Lead Counsel as Class Counsel and certifying this action as a class action on behalf of a class consisting of

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275 F.R.D. 382, 2011 U.S. Dist. LEXIS 89503, 2011 WL 3567830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-evergreen-ultra-short-opportunities-fund-securities-litigation-mad-2011.