In re Turkcell Iletisim Hizmetler, A.S. Securities Litigation

209 F.R.D. 353, 2002 U.S. Dist. LEXIS 15649, 2002 WL 1964317
CourtDistrict Court, S.D. New York
DecidedAugust 22, 2002
DocketNo. 00 Civ. 8913(NRB)
StatusPublished
Cited by9 cases

This text of 209 F.R.D. 353 (In re Turkcell Iletisim Hizmetler, A.S. Securities Litigation) 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 Turkcell Iletisim Hizmetler, A.S. Securities Litigation, 209 F.R.D. 353, 2002 U.S. Dist. LEXIS 15649, 2002 WL 1964317 (S.D.N.Y. 2002).

Opinion

MEMORANDUM AND ORDER

BUCHWALD, District Judge.

This is a class action brought on behalf of those who purchased the American Depository Shares issued by defendant Turkcell Ileti-sim Hizmetleri A.S. (“Turkcell”) pursuant to a registration statement issued in July 2000. Plaintiff class alleges violations of sections 11 and 15 of the Securities Act of 1933. The defendants include Turkcell, its Chief Execu[355]*355tive Officer, Cuneyt Turktan, and its Chief Financial Officer Ekrem Tokay (the “Turk-cell defendants”) and its underwriters, Goldman Sachs International, Morgan Stanley & Co. International Limited, Credit Suisse First Boston (Europe), Lehman Brothers International AG London, and UBS AG (the “underwriter defendants”). Now pending is the plaintiffs’ motion to certify A.O.A. Securities Anstalt (“AOA”) and BPI Global Asset Management (“BPI”) as lead plaintiffs, and Robert Robins, William Rasdolsky, Saul Sil-verman, William Speier, and Arif Temurcan as named plaintiffs for the class of people who purchased American Depository Receipts of Turkcell during the period between July 10, 2000, until September 21, 2000, inclusive, and who can trace their purchase to the July 10, 2000, registration statement. Defendants have opposed certification on several grounds.1 For the reasons discussed below, the class is certified with A.O.A. as the sole lead plaintiff and Robert Robins, William Rasdolsky, Saul Silverman, William Speier, and Arif Temurcan as named plaintiffs.

BACKGROUND

The facts surrounding this case are set out more fully in our November 1, 2001, Memorandum and Order, in which we granted defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) in part and denied it in part. 202 F.Supp.2d 8 (S.D.N.Y.2001). Briefly, this action arises out of alleged omissions in a prospectus issued by Turkcell, a mobile communications service provider in Turkey, in connection with its initial public offering of American Depository Shares. The prospectus was filed with the Securities and Exchange Commission on or about June 26, 2000, and became effective on or about July 10, 2000. Plaintiffs filed the complaint on November 22, 2000, and filed a consolidated an amended class action complaint on March 29, 2001. Plaintiffs filed this motion for class certification on March 20, 2002.

DISCUSSION

I. Rule 23(a)(2) Prerequisites for Class Action Certification

In order to qualify for certification as a class action, plaintiffs must meet the four-part test set out in Fed.R.Civ.P. 23(a), which states:

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.

We address each requirement in turn.

A. Numerosity

Plaintiffs do not have to demonstrate the precise number of potential class members. Maywalt v. Parker & Parsley Petroleum Co., 147 F.R.D. 51, 55 (S.D.N.Y.1993), aff'd 67 F.3d 1072 (2d Cir.1995). Instead, in a securities class action, plaintiffs can demonstrate numerosity on the basis of large numbers of shares outstanding and traded. See In re Oxford Health Plans, 191 F.R.D. 369, 374 (S.D.N.Y.2000). Turkcell issued 96 million shares, and plaintiffs believe that there are thousands of class members, which would make joinder impracticable. Accordingly, plaintiffs have met the numerosity requirement.

B. Commonality

Plaintiffs’ claim is based on defendants’ alleged misstatements in the prospectus accompanying the issuance of Turkcell shares. There are several common questions of law and fact, which are set out in the complaint, including: whether the defendants violated section 11; whether the statements regarding churn rate were misleading; whether defendants Turktan and Tokay are “control persons” within the meaning of the [356]*356Securities Act; and whether plaintiffs and other class members suffered any damages, and, if so, in what amount. PI. Motion, at 11.

C. Typicality

The commonality and typicality requirements of Rule 23(a) tend to merge. See Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997). Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Typicality does not require a showing that the named plaintiffs’ claims are identical to those of the class members but merely that the claims arise from the same course of events. Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 200 (S.D.N.Y.1992). The typicality requirement is often evaluated together with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 158 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). As all the prospective named plaintiffs claim losses as a result of the allegedly misleading registration statement, the class representatives’ cases are typical of all class membei's.

D. Representation

Defendants raise two objections to the ability of the named plaintiffs to represent the class. First, they object to the adequacy of plaintiffs Arif Temurcan, AOA, and BPI.2 Second, they contend that, if we were to decline to certify Arif Temurcan, AOA, and BPI, there would be no proper representatives of the aftermarket purchasers to represent their interests in a potential conflict between the primary purchasers and the aftermarket purchasers.

1. Adequacy of Proposed Plaintiffs

Although the Second Circuit has stated that “class certification may properly be denied ‘where the class representatives ha[ve] so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys.’ ” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077-78 (2d Cir.1995), quoting Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). Nonetheless, the Second Circuit has made it clear that the standard for representation does not require a high level of understanding of the action.

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209 F.R.D. 353, 2002 U.S. Dist. LEXIS 15649, 2002 WL 1964317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-turkcell-iletisim-hizmetler-as-securities-litigation-nysd-2002.