In re Piedmont Office Trust, Inc. Securities Litigation

264 F.R.D. 693, 2010 U.S. Dist. LEXIS 27737, 2010 WL 1030667
CourtDistrict Court, N.D. Georgia
DecidedMarch 10, 2010
DocketCivil Action No. 1:07-CV-2660-CAP
StatusPublished

This text of 264 F.R.D. 693 (In re Piedmont Office Trust, Inc. Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Piedmont Office Trust, Inc. Securities Litigation, 264 F.R.D. 693, 2010 U.S. Dist. LEXIS 27737, 2010 WL 1030667 (N.D. Ga. 2010).

Opinion

ORDER

CHARLES A. PANNELL, JR., District Judge.

This action is before the court on the plaintiffs motion for class certification [Doc. No. 59],

I. FACTUAL BACKGROUND

This action was filed on October 25, 2007 [Doe. No. 1], as a purported class action against Piedmont Office Realty Trust, Inc. (“Piedmont”), and certain Piedmont directors and officers. The plaintiffs, Piedmont shareholders, filed the amended complaint on May 19, 2008. The claims in the amended complaint pertain to two sets of filings made by the defendants with the Securities and Exchange Commission (“SEC”).

Count I is brought pursuant to Section 14(e) of the Securities Exchange Act of 1934 (“Exchange Act”) and alleges that the defendants made omissions of material information in recommendations that shareholders not sell their shares in response to two tender offers made in May and June 2007. Count II alleges that the defendants disseminated proxy solicitations in violation of Section 14(a) of the Exchange Act. Counts III and IV allege breaches of fiduciary duty under state law.

Piedmont, a Maryland corporation with its principal executive offices located in Nor-cross, Georgia, is primarily engaged in the acquisition and ownership of commercial real estate properties. It is a public unlisted real estate investment trust (“REIT”), which means that (1) it is public because it is registered with the Securities and Exchange Commission (“SEC”), can sell to the investing public rather than only to “qualified investors,” and is required to file reports with the SEC; and (2) it is unlisted because its securities are not listed on a national stock exchange. Because of this business model, Piedmont had a fixed life. According to the original Articles of Incorporation, if its stock [696]*696was not listed on a national securities exchange by January 30, 2008, Piedmont would be required to sell its assets and distribute the proceeds.1

On May 25, 2007, Lex-Win Acquisition, an entity unaffiliated with the parties in this matter, offered Piedmont’s shareholders the opportunity to tender an aggregate of up to 5.2% of the company’s outstanding shares at $9.00 net per share. On June 12, 2007, Lex-Win increased this offer to $9.30 per share for an aggregate of up to 9.3% of the company’s outstanding shares.

Piedmont and its board of directors responded to both tender offers in filings with the SEC on June 8, 2007, and June 18, 2007, recommending that Piedmont’s shareholders reject the tender offers. With regard to these responses, the plaintiffs allege that the defendants failed to inform Piedmont’s shareholders that the Lex-Win tender offers were a timely liquidity event and viable exit strategy for holders of up to 9.3% of the stock. Additionally, the plaintiffs allege that the defendants made omissions regarding the likelihood of Piedmont becoming listed on the stock exchange as well as the then-current value or likely market price of the company’s shares in comparison to the price of the Lex-Win tender offers.

On August 10, 2007, the defendants stated publicly that a listing of the company on the stock exchange would be unlikely. On October 16, 2007, Piedmont filed a Schedule 14A Proxy Statement seeking shareholders’ approval to extend the January 30, 2008, deadline for up to three years at the Board’s discretion. The plaintiff contends that this proxy statement was misleading in a variety of ways because it failed to disclose material facts to the shareholders.

After adjudicating the defendants’ motion to dismiss, which was granted in part and denied in part [Doc. No. 44], the court directed the plaintiffs to file a recast complaint. The recast complaint [Doc. No. 47] contains two counts: (1) a class action claim asserting a violation of § 14(e) relating to the omission of information regarding the likelihood of the listing (Count I) and (2) a class action claim against the director defendants asserting a violation of § 14(a) of the Exchange Act relating to the recommendation of the extension of the list date (Count II).

II. LEGAL ANALYSIS

The plaintiffs have proposed a class consisting of two subclasses (a) “shareholders who were entitled to tender their shares to Lex-Win in May 2007 through July 2007, and who have claims under § 14(e) of the Exchange Act arising from misrepresentations made by the defendants in connection with the Lex-Win tender offers (the “Tender Offer Class”) and (b) “shareholders of record as of October 2, 2007 with claims under § 14(a) of the Exchange Act, arising from misstatements made in proxy statements soliciting their approval to extend the deadline by which the Company was to list its shares or liquidate (the “Proxy Class”)”.

Class certification is governed by Federal Rule of Civil Procedure 23. Subsection (a) provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (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 parties will fairly and adequately protect the interests of the class.

The four requirements are commonly referred to as “the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” General Telephone Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). The burden of proving the Rule 23(a) prerequisites is on the party seeking class certification. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir.1996).

[697]*697Rule 23(b) provides that, in addition to the Rule 23(a) prerequisites, a class must fall into one of three categories: (1) the pursuance of separate actions would create a risk of inconsistent verdicts or would, as a practical matter, make individual adjudications dispositive of the interests of class members who are nonparties; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the putative class such that declaratory or injunctive relief with respect to the class as a whole would be appropriate; or (3) questions of law or fact common to members of the class predominate over issues affecting individual members, and class adjudication is preferable to other methods of litigation for purposes of a fair and efficient resolution of the controversy.

And finally, prior to the certification of a class, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim. Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). To have standing, a named plaintiff must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct.

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Bluebook (online)
264 F.R.D. 693, 2010 U.S. Dist. LEXIS 27737, 2010 WL 1030667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-piedmont-office-trust-inc-securities-litigation-gand-2010.