In re Universal Access, Inc.

209 F.R.D. 379, 2002 WL 2031351
CourtDistrict Court, E.D. Texas
DecidedAugust 8, 2002
DocketNo. Civ.A. 9:02-CV-103-JH
StatusPublished
Cited by10 cases

This text of 209 F.R.D. 379 (In re Universal Access, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Universal Access, Inc., 209 F.R.D. 379, 2002 WL 2031351 (E.D. Tex. 2002).

Opinion

JURY TRIAL DEMANDED

HANNAH, Chief Judge.

AMENDED ORDER CONSOLIDATING CASES, APPOINTING LEAD PLAINTIFFS, AND APPROVING SELECTION OF LEAD AND LIAISON COUNSEL

Before the Court are the competing Motions of the Frandsen Group and the Louie Group for Consolidation, Appointment as Lead Plaintiff and Approval of Selection of Lead and Liaison Counsel pursuant to Section 21D of the Securities Litigation Reform Act of 1995 (“PSLRA”). After reviewing the written and oral arguments of the parties, as well as the applicable law, it is the opinion of the Court that the Motion should be GRANTED.

I. Background

Presently pending before this Court are two securities class actions (the “Actions” or “Lufkin Actions”), brought on behalf of all persons who purchased the securities of Universal Access, Inc./Universal Global Holdings, Inc. (“UAXS”) between May 10, 2001 and March 22, 2002, inclusive (the “Class Period”). The Lufkin Actions are styled:

Frandsen v. Universal Access, Inc., et al., Cause No. 9-02-CV-103 (hereinafter the “Frandsen action”); and
Steven Reynolds, v. Universal Access, Inc., et al., Cause No. 9:02-CV-112.1

[381]*381Each of these cases allege identical violations of Section 10(b), and 20(a) of the Securities Exchange Act of 1934 as amended by the Private Securities Litigation Reform Act of 1995 (“PSLRA”) (15 U.S.C. §§ 78(J)(B) and 78(t)), and Rule 10b-5 promulgated thereunder (17 C.F.R. § 240.10b-5).

The substantive factual background of the Lufkin Actions can be found in the Original Complaint captioned John Frandsen vs. Universal Access, et al., Cause Number 9:02-CV-103 (the “Frandsen Complaint”). The Frandsen Complaint was the first Complaint filed in this matter and was filed on behalf of Mr. Frandsen and the putative class.

The same day Frandsen filed his Original Complaint, April 25, 2002, he caused notice of filing to be disseminated pursuant to the mandate of the PSLRA on the Business Wire national wire service (hereinafter “the Notice”). Subsequent to the date Frandsen disseminated the Notice, 5 individuals filed complaints identical to the Frandsen Complaint in the United States District Court for the Northern District of Illinois.

On June 24, 2002, Frandsen, together with putative class members John Frandsen, William Ryback-Luedi, Jerry Freeland, George Tenyer and Michael Whelan (hereinafter “Movants” and/or “the Frandsen Group”) filed the present Motion, seeking an order from this Court: (i) consolidating the above-captioned actions; (ii) appointing the Frand-sen Group as Lead Plaintiff for the Class under Section 21D(a)(3)(B) of the Exchange Act, and (iii) approving the Frandsen Group’s selection of Co-Lead Counsel Liaison Counsel.2

Also on June 24, 2002, another group consisting of Rick Louie, Dennis R. Jensen, Ruben Urcis, and Nick J. Snitzer (hereinafter the “Louie Group”), filed a Motion to Consolidate Actions, to be Appointed Lead Plaintiffs, for Approval of Lead Plaintiffs’ Selection of Lead Counsel and Liaison Counsel in this Court under the Lufkin Actions. No other person or group of persons filed a motion for consolidation and/or appointment as lead plaintiff in this Court.

Counsel for the Frandsen Group and Counsel for Defendants subsequently entered into a Stipulation and Agreed Preliminary Scheduling Order for the Frandsen Case, which the Court then signed and entered as an Agreed Order. The Agreed Order allows Defendants 45 days to move, answer or otherwise respond to the Frandsen Action from the date the Court signs an Order either granting or denying the Frand-sen Group’s Motion. The Agreed Order also sets forth a briefing schedule regarding the deadlines for the Frandsen Group to file an Amended Consolidated Complaint, the Defendants to file a motion to dismiss, answer or other motion, and for the Frandsen Group to file a reply thereto.

The Court then issued an Order dated July 12, 2002 setting a hearing on the competing motions of the Frandsen Group and the Louie Group to be held on July 29, 2002 at 5:00 p.m. CST in Lufkin, Texas. The clerk issued notice of this hearing to counsel for the Louie Group, Steven Reynolds, and the Frandsen Group. The Court held a hearing on these matters as scheduled on July 29, 2002 at 5:00 p.m. CST in Lufkin, Texas, as set forth in the Order. Representatives for Steven Reynolds, StoneRidge Investment Partners, L.L.P. (“StoneRidge”), the Frand-sen Group, and Defendants appeared at this hearing. During the hearing, the Law Offices of Bernard Gross, P.C., counsel for Steven Reynolds and StoneRidge, informed the Court that Reynolds did not oppose the Frandsen Group’s Motion and, instead, was attending the hearing in support of such Motion. Additionally, counsel for Defendants appeared at the hearing and informed the Court that Defendants take no position with respect to the competing motions-. Although given notice of the hearing, neither counsel for the Louie Group nor any representative from the Louie Group appeared at the hearing.

[382]*382For the reasons stated below, the Court finds that the Motion of the Frandsen Group is well-taken and should be and is hereby GRANTED.

II. Discussion

A. Consolidation of this Lufkin Actions

Consolidation is appropriate where there are actions involving common questions of law or fact. Fed.R.Civ.P. 42(a). See Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir.1990). Further, the PSLRA expressly requires that the Court enter an order consolidating similar actions:

If more than one action on behalf of a class asserting substantially the same claim or claims arising under this title has been filed, and any party has sought to consolidate those actions for pretrial purposes or for trial, the court shall not make the determination required by clause (i) [the appointment of lead plaintiff/lead counsel] until after the decision on the motion to consolidate is rendered. As soon as practicable after such decision is rendered, the court shall appoint the most adequate plaintiff for the consolidated actions in accordance with this paragraph.

15 U.S.C. § 78u-4(a)(3)(B)(ii).

Here, the Lufkin Actions each assert class claims on behalf of the purchasers of UAXS securities for alleged violations of the Exchange Act during the relevant time period. The actions name the same Defendants and involve the same factual and legal issues.

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Bluebook (online)
209 F.R.D. 379, 2002 WL 2031351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-universal-access-inc-txed-2002.