In re Intelcom Group, Inc. Securities Litigation

169 F.R.D. 142, 1996 U.S. Dist. LEXIS 15192, 1996 WL 588042
CourtDistrict Court, D. Colorado
DecidedOctober 10, 1996
DocketCiv. A. No. 95-D-1166
StatusPublished
Cited by24 cases

This text of 169 F.R.D. 142 (In re Intelcom Group, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Intelcom Group, Inc. Securities Litigation, 169 F.R.D. 142, 1996 U.S. Dist. LEXIS 15192, 1996 WL 588042 (D. Colo. 1996).

Opinion

MEMORANDUM OPINION & ORDER

DANIEL, District Judge.

I. INTRODUCTION

In this securities fraud action, Plaintiffs, through their First Amended Class Action Complaint, assert a claim for violation of Sections 10(b) and 20(a) of the Securities Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. This Court has jurisdiction over the claim pursuant to 28 U.S.C. §§ 1331 and 1337 and 15 U.S.C. § 78aa. This matter is before the Court on Plaintiffs’ Motion for Class Certification filed March 18, 1996. By Order dated November 15, 1995, the Court consolidated four existing actions against IntelCom for all pretrial purposes and designated the First Amended Complaint in Manoff v. IntelGroup, Inc. et al., 95-D-1166, as the operative complaint. The Order stated that the case would thereafter be known by the caption of this Order.

Ater conducting a hearing on the class certification issue on October 8, 1996 and reviewing the parties’ briefs and the relevant legal authorities, I conclude that Plaintiffs’ Motion for Class Certification should be granted for the reasons set forth below.

II. CLASS ACTIONS IN GENERAL

A class action is a unique procedural device designed for those peculiar circumstances where factual and legal issues are common to a class. General Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982). The principal justification for a class action is the saving of resources — i.e. judicial economy — offered to both the parties and the court. Id. In general, securities claims are particularly well suited for class action status because they allow for the policies behind the securities laws to be enforced in circumstances where there are numerous investors with small individual claims that otherwise would effectively be barred from litigation. In re Storage Technology Corp. Sec. Litig., 113 F.R.D. 113, 115 (D.Colo.1986) (“As a general matter, class actions are favored in securities fraud actions involving numerous plaintiffs.”); See also Eisenberg v. Gagnon, 766 F.2d 770, 785 (3rd Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1781, at 28 (1986).

In order to maintain a class action, Plaintiffs must satisfy all the requirements of Fed.R.Civ.P. 23.1 Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 408 (W.D.Okla.1990). The determination of whether they have done so is a matter within my sound discretion. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir.1982), cert. de[145]*145nied, 460 U.S. 1069, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983). Certification is appropriate only if I am content, “after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Falcon, 457 U.S. at 161, 102 S.Ct. at 2372. However, in ruling on Plaintiffs’ motion for class certification under Rule 23, my inquiry is limited to whether the requirements of Rule 23 have been satisfied. I may not consider the underlying merits of the claim. Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). Further, when considering a motion for class certification, the allegations of the complaint must be accepted as true. Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976).

The decision to grant or deny class certification necessarily entails weighing the practical and prudential considerations raised by the particular facts of each case. Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988). “In making the decision, the courts have [generally] erred in favor of certification since the decision is not set in stone, but is subject to later modification.” Edgington v. R.G. Dickinson & Co., 139 F.R.D. 183, 188 (D.Kan.1991) (citing Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969)); In re Storage Technology Corp. Sec. Litig., 630 F.Supp. 1072, 1077 (D.Colo.1986).

III. FACTS

Plaintiffs are purchasers of the common stock of IntelCom Group, Inc. (“IntelCom”). IntelCom is a competitive access provider (“CAP”) that competes with the regional operating Bell companies by enabling high volume users of telephone services to connect their internal telephone and data transmission systems directly to their long distance carriers, thereby bypassing all or most of the local telephone company’s network. Intel-Com bills itself as a “carrier’s carrier,” with nearly all of its CAP revenues derived from long distance carriers such as AT & T, Sprint and MCI.

Plaintiffs allege that IntelCom and certain of its officers and directors caused or permitted IntelCom to issue materially false and misleading public statements in press releases, public reports and filings with the SEC concerning IntelCom’s 51%-owned subsidiary, Fiber Optic Technologies, Inc. (“FOTI”). Plaintiffs contend that in its public filings and elsewhere, IntelCom continuously promoted the strategic value of the acquisition, identifying FOTI as the entity “through which the company conducts most of its network systems integration business” and which accounts for more than half of IntelCom’s revenues. (Motion for Class Certification, p. 6). This promotion was allegedly made despite the fact that IntelCom knew when it purchased FOTI that the federal government was threatening FOTI with debarment. Plaintiffs contend that not only was the threatened debarment not disclosed in IntelCom’s public filings, but that Intel-Com made other misrepresentations and omissions which served to artificially inflate the market price of IntelCom common stock.

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Bluebook (online)
169 F.R.D. 142, 1996 U.S. Dist. LEXIS 15192, 1996 WL 588042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-intelcom-group-inc-securities-litigation-cod-1996.