In re Storage Technology Corp. Securities Litigation

147 F.R.D. 232, 1993 U.S. Dist. LEXIS 4174, 1993 WL 89106
CourtDistrict Court, D. Colorado
DecidedMarch 24, 1993
DocketCiv. A. No. 92-B-750
StatusPublished
Cited by7 cases

This text of 147 F.R.D. 232 (In re Storage Technology Corp. 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 Storage Technology Corp. Securities Litigation, 147 F.R.D. 232, 1993 U.S. Dist. LEXIS 4174, 1993 WL 89106 (D. Colo. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

I.

Defendants Geoffrey DeBelloy, Lowell Thomas Gooch, Derek A Thompson, Robert G. Costain, Fred G. Moore, and Carl R. Vertuca (aider and abettor defendants) move to dismiss plaintiffs’ claim for aiding and abetting a violation of section 10(b) of the 1934 Securities Exchange Act (15 U.S.C. § 78j(b)) and Rule 10b-5 promulgated thereunder (collectively section 10(b)) and section 20A claim under the 1934 Securities Exchange Act (15 U.S.C. § 78t-1). Ml defendants move to dismiss plaintiffs’ section 20(a) claim under the 1934 Securities Exchange Act (15 U.S.C. § 78t(a)). Mso, all defendants move to strike allegations in plaintiffs’ third amended complaint which extend the end of the class period from August 7, 1992 to November 8, 1992.

The motion has been fully briefed and argued. I will deny the motion to dismiss in its entirety. However, I will strike the allegations in plaintiffs’ third amend complaint which extend the class period beyond August 7, 1992.

The allegations of fact underlying this action, gleaned from plaintiffs’ pleadings, are set forth in my October 23, 1992 memorandum opinion and order. See In re Storage Technology Corporation Securities Litigation, 804 F.Supp. 1368 (D.Colo.1992). Stor[234]*234age Technology Corporation (Storage Technology) developed an advanced data storage and retrieval computer code-named the Iceberg. During late 1991 and early 1992 Storage Technology promoted Iceberg. Storage Technology represented that Iceberg would go to production during the second quarter of 1992 and that investors could expect Storage Technology to earn significant profits in 1992 because of Iceberg’s anticipated success. Storage Technology also represented that Iceberg had a two to three year technological advantage over the competition. As expectations surrounding Iceberg soared, so did Storage Technology’s stock prices.

In late April and early May, 1992 Storage Technology announced problems with Iceberg’s development. Storage Technology revealed that it expected no earnings from Iceberg in 1992 because of its production problems. Storage Technology’s stock prices plummeted.

Plaintiffs purchased Storage Technology securities while the price was increasing. At the same time certain top Storage Technology officers and three of its eleven directors sold some of their Storage Technology securities. Plaintiffs allege that these officers and directors knew in November and December of 1991 that Iceberg would not go to production in 1992 and that Storage Technology would earn nothing from Iceberg in 1992. Plaintiffs allege that Storage Technology falsely touted the development, competitive advantages, and profit prospects of Iceberg to inflate the price of Storage Technology securities. Plaintiffs claim that because of defendants’ misleading statements about Iceberg, and their concealment of the true adverse information about it, they were fraudulently induced to purchase Storage Technology securities at artificially inflated prices. Plaintiffs also claim defendants used insider information to reap huge profits on the sale of their Storage Technology securities.

Plaintiffs are representatives of a class of Storage Technology securities purchasers. The class consists of all persons who purchased Storage Technology securities during the class period (December 23, 1991 through August 7, 1992). Upon stipulation of the parties, I ordered the class period extended through August 7, 1992. Plaintiffs assert various claims under the 1934 Securities Exchange Act and common law against Storage Technology and a number of its officers and directors responsible for the development and marketing of Iceberg.

In my October 23, 1992 memorandum opinion and order I dismissed plaintiffs’ section 10(b), section 20A, and fraud claims against all defendants but Storage Technology, Ryal R. Poppa (Poppa) and Gregory A. Tymn (Tymn). See In re Storage Technology, 804 F.Supp. 1368. Plaintiffs have now filed a third amended complaint in which they add an aiding and abetting claim against the aider and abettor defendants. Plaintiffs also add a section 20A claim against these same defendants, Poppa, and Tymn. Plaintiffs maintain their section 10(b) and fraud claims against Storage Technology, Poppa, and Tymn only and their negligent misrepresentation claims against all defendants.

II.

A.

Defendants argue that plaintiffs fail to plead their aiding and abetting claim with particularity. Plaintiffs cite Farlow v. Peat Marwick, Mitchell & Co., 956 F.2d 982 (10th Cir.1992) for the proposition that a claim for aiding and abetting a section 10(b) violation must be plead with independent particularity. Farlow clearly holds that a plaintiff must plead a section 10(b) claim with particularity. Farlow, 956 F.2d at 986. Farlow is unclear, however, whether a plaintiff must plead with independent particularity a claim for aiding and abetting a section 10(b) violation. In Farlow the plaintiff asserted a section 10(b) claim and a claim for aiding and abetting the section 10(b) violation. Because the plaintiff failed to plead the section 10(b) claim with particularity the Tenth Circuit upheld dismissal of both claims.

Fraud is an essential element of a claim for aiding and abetting a section 10(b) violation. To establish a claim for aiding and abetting a section 10(b) violation the plaintiff must plead and prove (1) fraud in the sale of securities by a primary violator, (2) knowl[235]*235edge of that fraud by the aider and abettor, and (3) substantial assistance by the aider and abettor in committing the section 10(b) violation. Farlow, 956 F.2d at 986; DBLKM, Inc. v. Resolution Trust Corp., 969 F.2d 905, 908 (10th Cir.1992).

The Tenth Circuit’s analysis in Farlow was limited to whether the plaintiff pled its section 10(b) claim with particularity. I read Farlow to require dismissal of an aiding and abetting claim only if the plaintiff fails to plead the underlying section 10(b) fraud violation with sufficient particularity.

Fed.R.Civ.P. 9(b) delineates the allegations a plaintiff must plead with particularity. Rule 9(b) states: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” Aiding and abetting is not a pure fraud claim. Fraud, however, is an essential element of an aiding and abetting claim. Therefore, I hold that although an aiding and abetting claim must be pled with particularity insofar as the section 10(b) violation is concerned the other elements of an aiding and abetting claim may be pled generally. See Fed.R.Civ.P. 9(b).

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147 F.R.D. 232, 1993 U.S. Dist. LEXIS 4174, 1993 WL 89106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-storage-technology-corp-securities-litigation-cod-1993.