In re Milken

150 F.R.D. 46
CourtDistrict Court, S.D. New York
DecidedJuly 19, 1993
DocketMDL No. 924; Nos. 92 Civ. 9239(MP), 93 Civ. 4199(MP), 93 Civ. 4105(MP)
StatusPublished
Cited by31 cases

This text of 150 F.R.D. 46 (In re Milken) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Milken, 150 F.R.D. 46 (S.D.N.Y. 1993).

Opinion

OPINION

MILTON POLLACK, Senior District Judge.

I. Preliminary

A Global Settlement of three class litigations denominated the “Ames Securities Liti[49]*49gations” has been proposed. Each of the class suits was transferred to this Court by the United States Judicial Conference Panel for Multidistrict Litigation. The actions were in various phases of preparation for trial, following appeals in two of them to the Court of Appeals resulting in reversals requiring trial of all three class suits.

Under guidance of the Court, the parties respectively were able to achieve a Global Settlement of all of the suits and that settlement is now before the Court pursuant to Rule 23(e), Fed.R.Civ.P. after notice to members of the classes in the constituent actions, for a determination of the fairness, reasonableness, and adequacy of the Global Settlement, and incident thereto, the allowance of counsel fees, expenses, including administration of the distributions to be made and taxes chargeable against the proposed settlement funds.

The Class suits pending before the Court are briefly described as follows.

1. The Debenture Action was brought on behalf of all persons (except defendants, their family members, and affiliates) who purchased Ames Debentures under a Registration Statement effective October 5, 1989 and thereafter through April 9, 1990. It asserts claims under Sections 11, 12 and 15 of the Securities Act, Rule 10b-5, common law fraud, and negligent misrepresentation. The defendants include present and former officers and directors of Ames (most of whom signed the Debenture Registration Statements), Coopers and Lybrand, an accounting firm, and the underwriters in connection with the Debenture Offering.

2. The Note Action was brought on behalf of all persons (other than defendants, their family members, and affiliates) who purchased Ames Reset Notes under a Registration Statement effective May 16,1989 and thereafter through April 9, 1990. It asserts claims under Sections 11,12(2) and 15 of the Securities Act, Sections 10(b) and 20 of the Exchange Act, Rule 10b-5 and for common law fraud. The defendants include present and former officers and directors of Ames, one of the underwriters in connection with the Note offering, Coopers & Lybrand, and TJX. The Note Action was dismissed by the District Court of Connecticut pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that plaintiffs’ claims were time-barred. On April 2, 1993, the United States Court of Appeals for the Second Circuit reversed the decision of the District Court. In re Ames Department Stores Inc. Note Litigation, 991 F.2d 968 (2d Cir.1993).

3. The Stock Action was brought on behalf of all persons (other than defendants, their family members and affiliates) who purchased Ames Common Stock during the period May 10,1989 through April 10,1990. The Stock Action asserts claims under Sections 10(b) and 20 of the Exchange Act, Rule lob-5, common law fraud, and negligent misrepresentation. The defendants include present and former officers of Ames, and Wertheim Schroeder & Co., Inc. (“Wertheim”), one of the underwriters on the Debenture and note offerings (which also served as financial ad-visor to Ames and whose chairman was also chairman of Ames). The Stock Action was dismissed by the District Court of Connecticut for failure to state a claim. On April 2, 1993, the United States Court of Appeals for the Second Circuit reversed the decision of the District Court. In re Ames Department Stores Inc. Stock Litigation, 991 F.2d 953 (2d Cir.1993).

A. Plaintiffs’ Claims

In October 1988 Ames—a large discount retailer—doubled its size by acquiring the Discount Store Division of Zayre Corp. for more than $800 million. During 1989, Ames refinanced, in part, that acquisition by selling $355 million in debt securities to the investing public in two public offerings. The first was a $200 million offering of Reset Notes, which became effective on May 16, 1989. The second was a $155 million offering of debentures, which became effective on October 5, 1989. On April 25, 1990—less than one year after the offering of the Reset Notes, Ames filed for bankruptcy. By then, Ames debt securities had lost virtually all of their value. Ames Common Stock, which had traded as high as $19.50 per share during the class period, plummetted to $2.50 per share.

[50]*50Plaintiffs alleged that, during the class periods, defendants issued a number of positive public statements, in the prospectuses for the debentures and the reset notes, in press releases, in annual and quarterly reports to shareholders, in filings with the SEC, and in other documents, which were false and misleading because they contained material misrepresentations and omitted material facts. Among other things, plaintiffs alleged that defendants misrepresented that the integration of the Zayre stores into Ames was a success, and that Ames would be profitable during its 1990 fiscal year, and omitted to disclose that Zayre’s comparable store sales had declined, that many major problems had arisen as a result of the acquisition (including systems integration problems), and that Ames would suffer a substantial loss for its 1990 fiscal year.

B. Defenses Asserted

While plaintiffs believed that they had strong eases, defendants raised a number of defenses. Defendants argued that each statement relating to Ames’ effort to integrate and turn around the Zayre business was accurate when made and was founded on a reasonable factual basis. According to defendants, the bankruptcy filing resulted from post-offering events that were not, and could not reasonably have been, anticipated.

Defendants argued that financial success or failure in the retail industry depends heavily on year-end performance, as the holiday season typically accounts for a disproportionately large part of a retailer’s yearly earnings. Ames’ performance in November and December 1989, particularly in the former Zayre stores, was worse than Ames’ management had projected based on Ames’ historical performance. The company’s poor results, in turn, led to a severe liquidity crisis and, ultimately, to Ames’ bankruptcy filing.

Further, defendants asserted that Ames’ disappointing performance was not unusual in the struggling economy at that time (particularly in the Northeast, where many of the stores were located), and that price-cutting from competitors exacerbated the situation. According to defendants, Ames was not the only retail chain to suffer in this environment: numerous Campeau retailers, such as Bloomingdales, Allied Stores Corp. (including Sterns, Bon Marche, and Jordan Marsh) and Federated Department Stores (including Abraham & Strauss, Burdines, and Lazarus) all filed for bankruptcy in January 1990.

With respect to the claims for which plaintiffs had to prove scienter, defendants argued that several defendants—including Ames’ chief executive and chief financial officer, as well as outside directors of the company— purchased

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Bluebook (online)
150 F.R.D. 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-milken-nysd-1993.