In re Kirschner Medical Corp. Securities Litigation

139 F.R.D. 74, 1991 U.S. Dist. LEXIS 13422, 1991 WL 189624
CourtDistrict Court, D. Maryland
DecidedJuly 26, 1991
DocketCiv. A. No. WN-90-858
StatusPublished
Cited by50 cases

This text of 139 F.R.D. 74 (In re Kirschner Medical Corp. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kirschner Medical Corp. Securities Litigation, 139 F.R.D. 74, 1991 U.S. Dist. LEXIS 13422, 1991 WL 189624 (D. Md. 1991).

Opinion

[76]*76MEMORANDUM

NICKERSON, District Judge.

This securities action was commenced on March 22, 1990, by Michelle Mrdeza and Patrick Magrath, purchasers of common stock of Kirschner Medical Corporation (“Kirschner” or the “company”), against Kirschner and several of its officers and directors. On May 11, 1990, the Court consolidated into this action four similar suits filed by Howard Rosen on April 6, 1990 (WN-90-996), by Daniel L. Berger, IRA on April 9, 1990 (WN-90-1013), by Seymour and Mae Wohl on April 10, 1990 (WN-90-1023) and by Rodney B. Shields on April 12, 1990 (WN-90-1053).

The Consolidated Complaint alleges that Kirschner and the individual defendants1 violated Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission (the “SEC”), 17 C.F.R. § 240.10b-5. Plaintiffs contend that defendants disseminated to the investing public a series of materially false and misleading statements regarding Kirschner, its business operations, financial condition, products and future prospects. It is alleged that as a result of these misrepresentations and omissions of material facts, the price of Kirschner stock from November 14,1988 to April 9, 1990 was artificially inflated. The plaintiffs have also alleged pendent common law claims of fraud, deceit and negligent misrepresentation. (Counts II and III of the Consolidated Complaint).

This matter is now before the Court on plaintiffs’ motion for class certification pursuant to Fed.R.Civ.P. 23(a) and (b)(3). (Paper No. 17). The plaintiffs seek to represent a class defined to include all persons who purchased Kirschner common stock during the period November 14, 1988 through and including April 9, 1990 (the “Class Period”), with the exception of defendants, their subsidiaries, persons, affiliates and entities they control, and members of their immediate families. Defendants oppose the motion. (Paper No. 25). After a careful review of the papers, the Court concludes that a hearing is not necessary (Local Rule 105.6) and will grant the motion for class certification.

FACTUAL BACKGROUND

Kirschner is a publicly owned company based in Timonium, Maryland, that develops, designs, manufactures, and markets products used in human and veterinary orthopedic procedures. Kirschner also manufactures and sells surgical tables and surgical lighting. As of May 7, 1990, Kirschner had 2,365,426 outstanding shares of common stock.

On November 14, 1988, Kirschner announced in a press release its results for the third quarter 1988 (ending September 30, 1988). Defendants reported in the release that Kirschner’s revenues had increased 202% and net income had increased 85% over revenues and net income for the same period the prior year. At this time, defendants also filed with the SEC Kir-schner’s Form 10-Q for the third quarter 1988 which reported large increases in the sales of Kirschner’s reconstructive products, trauma products, tables and lighting systems, and soft goods, in part due to Kirschner’s recent acquisition of certain assets of the Chick Medical Products Division (“Chick”) of Professional Medical Products, Inc.

Thereafter, on March 13, 1989, defendants again announced record sales and earnings for both the fourth quarter 1988 and year ended December 31, 1988. The release stated that domestic and international sales were continuing to improve, that shipments of orthopedic implant products in the international market had risen by 300%, and that other products including Chick’s surgical tables and new lighting system were “expected to fuel continuing [77]*77rapid growth in 1989.” Several days later, on March 27, 1989, Kirschner released its 1988 Annual Report to shareholders which emphasized the company’s strong position, “excellent” earnings, and its optimistic future business plans. The next month, on April 17,1989, the company announced that it had been sued by a competitor, ALM Surgical Equipment Inc. (“ALM”), for patent infringement of one of its lighting products. Kirschner described the suit as without merit and stated that it would be vigorously defended.

Subsequently, defendants announced in press releases and financial statements that Kirschner had achieved record sales and earnings in the first and second quarters 1989. The company also issued a variety of statements concerning the strong demand for its new products, and its substantial backlog of orders.

On October 27, 1989, Kirschner announced in a press release that its earnings for the third quarter 1989 would be substantially less than expected. Defendants, however, attributed this shortfall to temporary factors and stated that the company’s growth would resume in the fourth quarter. On November 14, 1989, defendants announced that Kirschner had, in fact, incurred a loss from operations for the third quarter 1989. The company stated that these results were “temporary” and that it expected to return to profitability in the fourth quarter.

Despite these statements, at a meeting with securities analysts the next month the company revealed that there would be a loss in the fourth quarter due to certain costs incurred in Kirschner’s Chick division. On January 26, 1990, the company also reported that it had lost a jury verdict in the litigation with ALM concerning the patent infringement allegations against Kirschner.

On April 2, 1990, Kirschner issued a news release stating that it had renegotiated its bank loans and had undertaken a major restructuring. The company disclosed its intention to separate the production of surgical lighting and tables from production of its orthopedic products, and that the former would be sold or spun off and accounted for as a discontinued operation. A few days later, on April 9, 1990, the company announced in a news release that it had incurred an enormous net loss for the forth quarter and for fiscal year 1989. At that time, the public was informed that Kirschner had sustained a net loss of $14,177,000 or $5.80 per share for the twelve months ended December 31, 1989. Plaintiffs allege that it was on this date it became clear that defendants’ prior upbeat predictions concerning Kirschner’s products and prospects were false and misleading.

The complaint alleges that Kirschner’s third quarter and year end 1988 financial statements, its first, second and third quarter 1989 financial statements and certain public statements made by defendants pri- or to April 9, 1990 were materially false and misleading when issued and omitted material facts concerning Kirschner’s financial condition and the performance of its products. Plaintiffs allege that these statements were designed to and did create an illusion that Kirschner was financially strong, with significant assets and continued strong earning potential. It is alleged that these false and misleading statements artificially inflated the value of Kirschner’s common stock. Plaintiffs assert that Kir-schner’s stock dropped more than 73% from $26V4 per share to approximately $7 to $8 per share as the investing public learned about Kirschner’s substantial problems. DISCUSSION

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139 F.R.D. 74, 1991 U.S. Dist. LEXIS 13422, 1991 WL 189624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kirschner-medical-corp-securities-litigation-mdd-1991.